GENERAL MEDICAL COUNCIL
PROFESSIONAL CONDUCT COMMITTEE
On:
Tuesday, 8 June 2004
Held at:
St James’ Building
79 Oxford Street
Manchester M1 6FQ
Case of:
DAVID SOUTHALL MB BS 1971 Lond
(Day Two)
Committee Members:
Prof D McDevitt (Chairman)
Ms F Bremner
Mr S Gurjar
Ms C Langridge
Rev J Philpott
Mr D Mason (Legal Assessor)
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MR K COONAN QC, of Counsel, instructed by Messrs Hempsons, appeared on behalf of the Doctor, who was present.
MR R TYSON, of Counsel, instructed by Messrs Field Fisher Waterhouse, appeared on behalf of the Council and Mr Stephen Clark.
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(Transcript of the shorthand notes of TranscribeUK
Tel No: 0208 614 5799)
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INDEX
Page
OUTLINE OF FACTS, continued 1
STEPHEN CLARK, sworn
Examined by MR TYSON 2
PAUL ADRIAN BLOMELEY, sworn
Examined by MR TYSON 8
Cross-examined by MR COONAN 10
Questioned by THE COMMITTEE 13
Further cross-examined by MR COONAN 14
Re-examined by MR TYSON 16
JOHN GRAHAM GARDNER, sworn
Examined by MR TYSON 18
Cross-examined by MR COONAN 22
Re-examined by MR TYSON 32
Questioned by THE COMMITTEE 32
Further re-examined by MR TYSON 33
GUY MITCHELL, affirmed
Examined by MR TYSON 34
Cross-examined by MR COONAN 46
Questioned by THE COMMITTEE 52
PATRICK OLIVER WHEELER, sworn
Examined by MR TYSON 52
Cross-examined by MR COONAN 56
Re-examined by MR TYSON 62
Questioned by THE COMMITTEE 63
Further re-examined by MR TYSON 65
PATRICIA MARGARET CHIPPING, sworn
Examined by MR TYSON 66
Cross-examined by MR COONAN 80
Re-examined by MR TYSON 88
Questioned by THE COMMITTEE 89
Further re-examined by MR TYSON 92
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THE CHAIRMAN: Good morning. Mr Tyson.
MR TYSON: Last night, in my anxiety to complete my opening, I neglected to take the Committee one other important document in this case. The Committee will recall that the events I was dealing with were in 2000 and it is right that the Committee should know that in 2001 Professor Southall’s suspension was lifted and he was vindicated of the allegations made against him. We can see that if we look at the bundle at page 90.
We can see that this is a letter of 24 August 12001 from Dr Chipping to Professor Southall, and he reports that there was a meeting on 13 August. The second paragraph:
“On Thursday, 23rd August 2001 I briefed the Trust Board on the progress with your employment investigation in relation to child protection. In particular, I advised the Board that I had received the draft report produced by the independent medical advisers.
I explained that whilst there was still due process to be completed in respect of completion of the preliminary enquiry process it was clear that there were no issues arising from the report which amounted to serious professional competence or conduct. On this basis, in accordance with the trust procedure for dealing with issues of professional competence and professional conduct I felt that your suspensions should be lifted with immediate effect.
I explained to the Board the discussions which had taken place”
and it sets out a number of discussions.
“I am pleased to confirm that the Trust Board have supported my decision to lift your suspension with immediate effect.”
Then there are various other matters relating to that which I can deal with if my learned friend wants me to.
Finally, just before I call Mr Clark, can I ask the Committee to look at the last paragraph on page 87? I would ask the Committee to consider these matters when they are hearing the evidence of Mr Clark. It is quite clear, because we are all human beings, that this additional allegation against him came at a time when he has lost his two children and his wife was in prison. His life was in ruins and here was a man who was not only accusing him of being a double murderer but was very anxious that the last remaining child that he h ad should be taken from his care.
With that, I call Mr Stephen Clark.
I should say that after discussions with my learned friend he will permit me to lead certain matters. Also I would ask that he write down his address.
STEPHEN PHILIP CLARK, Sworn
Examined by MR TYSON
Q Mr Clark, could you give to the Committee your full name, please?
A Stephen Philip Clark.
Q Please could you write on the piece of paper in front of you’re your address and hand it to the Committee? (The witness wrote on a piece of paper, which was shown to counsel and the Committee). Were you married and are you married to Sally Clark?
A I am, yes.
Q When did you get married?
A July 1990.
Q Are both you and Sally solicitors?
A Yes.
Q And was your first child, Christopher, born on 22 September 1996?
A He was.
Q On 13 December 1996 did Christopher die?
A Yes, he did.
Q On 29 November 1997 was Harry born?
A Yes.
Q And did he die on 26 January 1998?
A Yes.
Q In the February after that January were both you and your wife arrested on suspicion of the murder of Harry?
A Yes.
Q And a few months later were both arrested on suspicion of murder of your first baby, Christopher?
A We were, yes.
Q And in July 1998 was Sally charged with the murder of both your sons?
A Yes.
Q And in November of that year was your third child, child A (as we have to call him in these proceedings) born?
A Yes.
Q When child A was born was there an agreement, a prior agreement, between you and Social Services – you and Sally and Social Services – that in the circumstances there should be an interim care order and that the child should be looked after by foster carers?
A Yes.
Q Did he remain with foster carers until Sally’s trial in October 1999?
A No, he was still there then. He was released from care in the following January.
Q So in November 1999 he was still with foster carers?
A Yes.
Q Was Sally convicted on 9 November 1999 by a majority verdict of the murder of both your children?
A She was, yes.
Q After the convection, was there a change in where child A was living?
A I think the Social Services decided since he was no longer at risk from his mother than the care order could be discharged and he could be returned into my custody.
Q Was he returned to live with you, albeit under the aegis of an interim care order?
A No, I think he was returned to me in the January and I think the care order was discharged at the same time. I may be wrong, the care order may have been in place, but I am fairly sure it was discharged in the January at the same time he was returned to me.
Q After Sally was convicted, was an appeal mounted?
A Yes.
Q And was that appeal due to be heard in June 2000?
A Yes.
Q Did you believe that Sally had killed either or both of your children?
A No, I knew she was innocent.
Q And did you have any involvement in seeking to overturn those convictions?
A Yes. Not so much in the first appeal because it was still all new to me and the lawyers seemed to have it fully under control and I most of my work came after the first appeal had failed really.
Q Was there any media interest of people wanting to interview you about the innocence or otherwise of Sally?
A There was massive media interest, yes. We were really plagued to death to do something.
Q Was there any particular invitation that you accepted from the media to deal with the matter?
A We had resisted so far because we did not think it was right and proper, and also because I had no experience of media, no training, never done anything before, and the idea of appearing on national television was pretty unattractive – pretty scary really. Nor did our solicitors know what they were doing and they admitted they did not know what they were doing with the media, so we really kept our heads down and focused just towards the appeal process. But our solicitors were approached by a production company called Just Television who used to do the Rough Justice programmes. They were fronted by David Jessel, who is a respected journalist who had made Rough Justice-type programmes. Our solicitors persuaded me that firstly we would get that type of a programme and also they had offered a significant sum of money to help into research into sudden infant deaths, which may or may not have helped towards Sally’s appeal. So really, against my better judgement and quite reluctantly, I did agree to do an interview for them as part of this programme.?
A And eventually did that programme go out on 27 April 2000?
A Yes.
Q And the Committee has seen that programme already, Mr. Clark. Shortly after that programme, did you receive two documents from your solicitor, and could you look, please, as to the first document, at page 16 of the bundle of documents which we know as C1?
A Yes.
Q Just read that to yourself?
A Yes.
Q Now could you turn to the letter that we have at page 20 of the bundle?
A Yes.
Q And what was your reaction to those two letters?
A I was quite astounded really. For the last two and a half years I felt my family had been attacked by the full forces of the state, in both the criminal courts and the family courts. I had lost my son, had him taken away from me, and I had also lost my wife in the criminal proceedings. So my life was in chaos at that point. Everything I had worked for had been taken away from me. At this point, I had got my son back and I was trying to bring him up alone as a single father, and we had an appeal listed, which we had been told was a very strong appeal and they were actually saying to us that it was inconceivable that it would fail. So to an extent my life was under control, on track and getting back to normality. And then for these to come in from that field was quite astonishing really and I have to say I was quite fearful of the consequences.
Q As a result of receiving those two letters, did you make a complaint to any organisation?
A Yes, I complained to the GMC.
Q In due course did you receive from your solicitors a report from Professor Southall that we have in our bundle at page 42 through to page 45?
A Yes.
Q Did you note at page 45 under the words in capitals, “IN CONCLUSION”, the words that, “I was stunned when watching this television since it appeared extremely likely if not certain to me that Mr Clark must have suffocated Christopher in the hotel room.” Did you note those words?
A Yes, I did.
Q Did you note the words further down, three paragraphs from the bottom, “I remain convinced that the third child in this family is unsafe in the care of Mr Clark”?
A I did, yes.
Q What was your reaction to the report in general of those passages I have highlighted to you in particular?
A I felt it was quite astounding. I think my initial reaction was astounding that a senior doctor could come to those conclusions based purely or largely on watching a television programme without having met me, without having talked to any of our health professionals or seen any of the other medical evidence in the case. Initially I may have thought is this some sort of sick joke but I then suddenly realised it was not, it was deadly serious and it could have some very, very serious consequences for me. I could have been arrested on suspicion of murder and my surviving son could have been taken back into care and maybe even adopted out of the family and I would never see him again.
Q In due course did you see an e-mail that had been written by Professor Southall that we have in our bundle at page 47?
A Yes.
Q Did you note, amongst other passages, these two:
“Thus there can in my opinion and beyond reasonable doubt be no explanation for the apparent life-threatening events suffered by the first baby which would account for bleeding, other than the person with the baby at the time causing the bleeding through the process of intentional suffocation. The subsequent unexplained deaths of the babies with other injuries makes it likely beyond reasonable doubt that Mr Clark was responsible.”
What was your reaction when you read that e-mail and that passage that I have highlighted in particular?
A I felt that I was being branded a double murderer by a very senior and well-respected consultant paediatrician. It is the criminal standard of proof, beyond reasonable doubt, that I had killed my children, which seemed unbelievable in the circumstances because he had not, as far as I am aware, seen any of the medical evidence in the case.
Q Did either the reading of the report of Professor Southall and/or the reading of the e-mail cause you any concerns at all as to your prospect of continuing to care for Child A?
A Absolutely. I knew from the contact and experience I had had up until that point that Social Services had some very strong powers to take children away from parents amid allegations like that that could have resulted in my surviving son being taken away from me again, having just had him back, adopted out of the family and I would never see him again.
Q Just as a matter of history so that it is on the sworn record, is it right that Sally’s first appeal was rejected by the Court of Appeal in October 2000?
A Yes.
Q Is it right that the Criminal Cases Review Commission referred the case back to the Court of Appeal in July 2002?
A Yes.
Q On the basis of some new evidence?
A Yes.
Q Is it right that on 29 January 2003 that was the second appeal by the Court of Appeal and at that date were the convictions of your wife quashed in respect of both children?
A They were, yes.
Q My last question, Mr Clark. It is alleged by Professor Southall that it was likely beyond reasonable doubt that you killed your children. Did you kill Christopher?
A No, I did not.
Q Did you kill Harry?
A No, I did not.
MR TYSON: Wait there, you might be asked some questions.
MR COONAN: I have no questions.
MR TYSON: Does the Committee have any questions it would like to ask Mr Clark?
THE CHAIRMAN: Mr Clark, on either side of me are the Committee who are listening to this case. It is possible as a consequence of the questions you have been asked and answered that they may have some additional questions for clarification. If so, I will introduce them to you. It appears that there are no additional questions. I think that concludes your evidence before this Committee. Thank you for coming to help us.
MR TYSON: May Mr Clark be formally released? He is the Complainant, so he is entitled to be here.
THE CHAIRMAN: Yes.
MR TYSON: I call Detective Constable Gibson.
STEPHEN JOHN GIBSON, Sworn
THE WITNESS: Stephen John Gibson, Detective Constable from the Staffordshire Police.
Examined by MR TYSON:
Q Mr Gibson, I appear on behalf of the General Medical Council and Mr Clark. My learned friend over there represents Professor Southall. The Committee hearing the case sits in front of you. Are you an officer with the Staffordshire police?
A That is correct.
Q In April 2000 were you a Detective Constable and Child Protection Officer based in Newcastle-under-Lyme?
A That is correct.
Q As part of your duties as a Child Protection Officer, had you met Professor Southall?
A I had, yes.
Q In what context had you met him?
A I met Professor Southall at child protection conferences, I had meetings over statements where he would have been a witness in cases, in child protection cases.
Q Did you know what his status was at a local hospital?
A I knew him to be a paediatric consultant.
Q Do you recall which hospital he was at at that time?
A At the North Staffordshire Hospital.
Q Did there come a time when you watched a Channel 4 programme about the Sally Clark murders?
A I did, yes.
Q Did anything happen as far as you are concerned the day after that programme was broadcast?
A Yes, it did. I had a telephone call from Professor Southall.
Q Can you recall the gist of that conversation at all?
A It was obviously in connection with the Dispatches programme and concerns over that particular case. Obviously it was not a Staffordshire matter and I passed the information on to colleagues at Cheshire police.
Q Did you keep any notes of the conversation that you had with him?
A I think I would have written – obviously it is four years ago – I would keep a notepad for taking telephone calls and writing down information coming into the office but I would not have kept those for a three year period.
Q Can you recall after four years what the gist of Professor Southall’s concerns were that caused him to ring up a child protection officer?
A As far as I can recall – obviously as I say I may have written one or two things down at the time - but just general concerns over the investigation as to whether there had been a miscarriage of justice.
Q Did you take those concerns seriously?
A As far as I was concerned I had just received information that needed passing to the appropriate people, which obviously were the police officers in Cheshire, for them to evaluate.
Q Do you recall speaking to any particular officer about that which Professor Southall had told you?
A I believe it was a Detective Inspector Gardner from the Cheshire police.
Q Having spoken to that officer and passed on your information, did you have any further involvement with the matter? Did you speak to either the officer or the professor again relating to this matter?
A As far as I can recall I think that because I had identified, obviously, the officer dealing with the matter in Cheshire that I would have done a courtesy call back to Professor Southall to let him know that his concerns had been passed on to the appropriate people.
MR TYSON: If you wait there you may be asked some questions.
MR COONAN: Sir, I have no questions. Thank you.
THE CHAIRMAN: Mr Gibson, as Mr Tyson said, the Committee who are hearing this case are either side of me. It may be they have questions for you and, if so, I will introduce them to you.
Well, it appears not and so I think that concludes your evidence before the Committee. Thank you.
MR TYSON: May this Officer be released?
THE CHAIRMAN: Yes, thank you for coming to help us.
THE WITNESS: Right, thank you.
(The witness withdrew)
MR TYSON: I call Paul Adrian Blomeley.
PAUL ADRIAN BLOMELEY, Sworn
Examined by MR TYSON
Q Could you give to the Committee your full names, please?
A Yes, I am Paul Adrian Blomeley.
Q And your professional address, Mr Blomeley?
A Is currently at Newgate House in Rochdale, Greater Manchester.
Q Mr Blomeley, I appear for the General Medical Council and Mr Stephen Clark.
A Yes.
Q The gentleman opposite represents Professor Southall, and the ladies and gentlemen here are the Committee the Professional Conduct Committee of the General Medical Council.
A Yes.
Q Are you a solicitor?
A Yes.
Q And are you, or were you in June of 2000 last year, a Branch Crown Prosecutor for the Crown Prosecution Service?
A Yes, I am a Branch Crown Prosecutor and was at that time.
Q Yes. And in 2000 were you the CPS Branch Crown Prosecutor with overall responsibility for the prosecution of Sally Clark?
A Yes, I had that all the way through. In fact, I was there from 1995.
Q You will recall, thus, that in November 1999 that Sally Clark was convicted?
A Yes.
Q And you will recall perhaps that she thereafter processed an appeal which was due to be heard in June of 2000?
A Yes.
Q Did there come a time when you received information from the Police that caused you to generate two letters?
A At least two letters, yes.
Q Yes. The Committee has a bundle of documents called "C1" and that is in front of you. Can I ask you, please, to look at Letter No. 16 in that bundle?
A Yes. Yes, that is my letter.
Q And would you assist the Committee as to who Burton Copeland are to whom you wrote that letter?
A Burton Copeland were at that time representing Sally Clark.
Q In the criminal proceedings?
A Yes.
Q Yes. And that was a letter that you wrote to that firm advising them that, as you made clear in your second paragraph, a Consultant Paediatrician had contacted the Police who had no prior knowledge of the case and expressed reservations about the role of Stephen Clark in both the deaths?
A Yes.
Q And, to use your own words, "out of an abundance of caution" you thought it right to draw this information to Sally Clark's solicitors?
A Yes.
Q Were you also aware that there were ongoing child care proceedings relating to the Clark's third child, who we know in these proceedings as Child A?
A Yes.
Q And were you aware that those ongoing proceedings were instigated by the Local Authority of Cheshire?
A Yes.
Q And, as a result of that, did you write a further letter to Cheshire County Council which we can see at Page 17 of the bundle?
A Yes, I did.
Q And you close the letter that we have seen at Page 16, and that you told the Local Authority that you had the Consultant's name and should they wish to take the matter further you would need to go back to the Police, and you confirmed to the Local Authority that the Paediatrician had no knowledge of the case other than from watching the television programme?
A Yes.
Q As a result of those two letters, were the matters raised investigated to your knowledge by the Police? The matters raised by Professor Southall?
A Yes, I asked the Police to make further investigations into those matters. Yes.
Q And, as a result of those investigations, did you cause the letter to be written that we have at Page 20 of our bundle?
A Well, yes. I was asked by the Cheshire County Council for the name of the Consultant Paediatrician that I had referred to in my letters and I had already asked Detective Inspector Gardner to make further enquiries into those matters raised by Professor Southall. I also asked him to ask Professor Southall whether he would be prepared for his name to be given out to the Local Authority, he straightaway agreed and therefore I wrote that letter which you have at Item 20 in your bundle.
Q Yes. And the letter makes it clear that you identified the name of the Officer in that letter and you gave the in that letter gave to the Local Authority the full professional address of Professor David Southall?
A Yes.
Q And did you conclude that letter saying, "I understand that Professor Southall has no knowledge of the case other than the television programme. He is, however, an expert in child abuse"?
A Well, that is right, as Professor Southall at all times was at pains to make it clear that his information that he was giving to the Police was limited by that and we were under no doubts that that was the case, which I thought was a very proper approach.
MR TYSON: If you just wait there a moment, Mr Blomeley, you may be asked some questions.
THE WITNESS: Thank you.
THE CHAIRMAN: Mr Coonan?
Cross examined by MR COONAN:
Q Mr Blomeley, can we just clarify a number of the features of your evidence on the documents?
A Yes.
Q First of all, Professor Southall and yourself have never met?
A No. Well, that is correct. Yes.
Q And so the letters that we have been looking at and we can look at them again at Page 17 and 20 and 16 as well any information in those documents comes from somebody else?
A Yes. Yes, I have it is obviously now four years ago and looking back, when I knew I was going to be giving evidence here, I was not quite sure where the information came from initially to me. My feeling is that it came from the Police, but I cannot actually be entirely sure about that
Q Right.
A And my feeling is that I never spoke to Professor Southall at all.
Q That is right.
A I certainly never met him.
Q It is just, you see, that I am just putting down a marker of caution?
A Yes.
Q When you say as you did a few minutes ago and I am summarising that as you say in your letter, "Professor Southall had no knowledge of the case other than the television programme", you are getting that belief from somebody else, is that right?
A Yes.
Q Now, do you think that you got that information from Detective Inspector Gardner?
A I think that is the most likely source, yes.
Q But you cannot be sure?
A No, I cannot be sure.
Q The position about the document on Page 20, if we can just turn it up, Professor David Southall's address?
A Yes.
Q Where did you get that professional address from?
A I cannot recall precisely, but I assume it was from Detective Inspector Gardner.
Q Yes. And so that we can make it absolutely clear, Professor Southall did not give you that address?
A No, he did not.
Q Now when you say that you put in train further investigations, may we just look at that for a minute?
A Yes.
Q It was at your instigation that Detective Inspector Gardner was deputed to go and discuss the matter with Professor Southall?
A Yes.
Q And, as far as you are aware, that is the limit of the investigation that was put in train following the disclosures made by Professor Southall?
A Yes.
Q You were responsible and I use that word neutrally, you understand?
A Yes.
Q Responsible within the Crown Prosecution Service for the original prosecution of Sally Clark?
A I was ultimately responsible, yes, though I had lawyers working on the case.
Q Of course.
A But I was ultimately responsible, yes.
Q Of course. And the information which you received from Professor Southall in the early part of 2000, was that information which was new to you?
A No, no. The information to the best of my recollection, if I can elaborate? To the best of my recollection the information was from Professor Southall that he was a Consultant Paediatrician, that he had an expertise in child abuse, that he felt on listening to Stephen Clark on the "Dispatches" programme that a nosebleed was very unusual extremely unusual in a child of that age and that it was almost always, I think, that a nose bleed was almost immediately after some traumatic event unless it was discounted through other disease.
Q Yes. Other medical conditions?
A Yes. And that was made absolutely clear that that came from his expertise, but he made it clear that he had no other knowledge of the case. We had already looked at the nose bleed situation in depth and we already had experts that were aware of that information. So, although I found Professor Southall's information helpful and welcome, it was not actually needed.
Q Did your experts within your knowledge during the process and preparation of the prosecution of Mrs Clark, did they come to the same view as Professor Southall on this issue?
A That is probably rather difficult to answer. I am not entirely sure what each of their views was. We looked at the nose bleed incident was reported by Stephen Clark. We regarded that with suspicion throughout the case.
Q I am sorry, what did you regard with suspicion?
A Whether there had been a nose bleed at all.
Q Yes.
A And so I think, as far as the experts were concerned, it would be fair to summarise that they felt that it was highly unlikely unless there was a medical condition, which there was not, that a child of that age would have a nose bleed of that type, that it was thereafter highly indicative of smothering and that if there had been a nose bleed of that type then the smothering was likely to have happened very recently. That was their view. But we were never, I think, convinced that there actually had been a nose bleed.
Q But on the assumption that there was, it would appear to boil down to this, that that was indicative of smothering, the question is by whom?
A Absolutely.
Q And therefore there could be only two candidates?
A Yes.
Q Sally or Stephen?
A Absolutely, yes.
Q I am talking about the hotel room incident?
A Yes. We looked very carefully at the position of both Sally Clark and Stephen Clark as possible perpetrators, yes.
Q Just so we are absolutely clear about it, your expert considered very seriously the proposition that Stephen Clark had attempted to smother Christopher in the hotel room?
A Yes.
MR TYSON: I have no re-examination.
Questioned by the COMMITTEE
MR GURJAR: Good morning, Mr Blomeley. Can I just ask you a question on the point you have just made. You said your experts had seriously considered this proposition. What made you think you had to look at it again?
A As I said, I was perhaps reconsidering that. I cannot really speak for the experts. What I think is probably more precise to say is that I considered the evidence as far as the possibility of Stephen Clark being involved in the deaths and, of course, I had other evidence that I had to balance as well as the medical evidence that I had to put into the balance. So I certainly considered it. As far as I know, the experts would have considered it also but clearly I do not know and I did not have any discussions with them as far as that is concerned.
MS LANGRIDGE: Mr Blomeley, we have a number of papers in this bundle but so far as I can see I do not appear to have any information which tells me what happened as a result of these enquiries. Did you in fact decide to dismiss these enquiries and write another letter which not in our bundle? Is it reasonable that we ask what happened?
A There was no letter. When I got the first information, that I am assuming was from the police, we considered it; I spoke to leading counsel about it and we decided it was not necessary as far as our prosecution was concerned and therefore it became a matter of disclosure to ensure that Sally Clark’s defence representatives had information that clearly might be of importance to them, namely that she had not actually committed murder. So we disclosed that matter to their solicitors and also we felt it right to disclose it to the local authority. That was the end of our dealing with the matter. In other words, we took the information on board but we believe we didn’t think that Professor Southall, helpfully thought we found his intervention, he was not actually needed to join our team of experts.
Q Would it be reasonable to infer then that in other words you discounted that information?
A I to not think it is quite as simplistic as that. I think the information was absolutely correct; the information that nose bleed is very rare in children of this age was accepted entirely by our experts; that if there was a nose bleed it was an indicator for smothering, as accepted by our experts. So the information was taken on board, it was just that we did not require Professor Southall to give that information in court because we already had our own experts who were aware of that information.
MS LANGRIDGE: Thank you.
THE CHAIRMAN: Just to clarify that point in our minds, I am not trying to put words into your mouth but I think what you are telling us is that the issue of the nose bleed was in fact part of the information considered and evaluated before the first trial?
A Yes.
Q And certainly well in advance of this television programme?
A Yes.
THE CHAIRMAN: Thank you. I think I can just say – Mr Tyson may correct me – we were taken to a document yesterday that indicated that the police had decided, having interviewed Professor Southall, not to take the matter further. I cannot remember where that was.
MR TYSON: There was an interview with Detective Constable Gardner, who is a witness I am about to call, who received the report from Professor Southall, and in the last few lines of that report added his personal observations, but whether it was Detective Constable Gardner’s decision to take the matter no further or this witness’s decision to take it no further, I do not know.
THE CHAIRMAN: Do either counsel wish to ask any more questions?
MR COONAN: Yes. Ms Langridge raised a matter and I think I would just like to follow that up if I may.
Further cross-examined by MR COONAN
Q Mr Blomeley, can we just go back, please, to your understanding of the position with your experts before the trial began and, indeed, at trial? When you told the Committee, as you did, that the experts and the CPS – the prosecution team – were aware of the proposition being advanced by Professor Southall as to the significance of nose bleeds, one in the absence of any other medical condition to explain them and discounting a spontaneous bilateral nose bleed, therefore it was indicative of smothering?
A Yes.
Q That much was therefore, as I understand you, pretty well common ground between your experts and Professor Southall?
A Yes.
Q The difference, however, I suggest, is this. Professor Southall was discounting the proposition that not only was it indicative of smothering but that if it was a case of smothering you would expect, again inevitably, bleeding at the same time?
A Yes.
Q Whereas the position amongst your experts, and in particular amongst one of them, Professor Sir Roy Meadow, was that it was distinctly possible for there to be a delay, possibly up to a few hours, between the episode of smothering and the onset of bleeding. That is right, is it not?
A Yes.
Q And the significance of that is that in relation to the hotel incident the Crown’s case at the trial was that Sally had attempted to smother Christopher, had then gone to the shops and then the bleeding came on about half an hour later, which was then witnessed by Stephen?
A Yes. The Crown’s position at the start of the trial was that we did not believe the story of the nose bleed at all. We felt that that was a fabrication in order to explain certain of the post mortem findings. To some extent, that remained our position, although as far as the case was concerned we did not proceed further with that. But, yes, you are quite correct in that our position was that if it was true about the nose bleed then our position was that Sally Clark had smothered the baby on that occasion and the nose bleed had been slightly delayed.
Q And the significance in physiological terms was that the episode alleged of smothering in the hotel room went to explain the presence of what I am going to call old blood in the lungs found at autopsy?
A Yes.
Q So there is no doubt about it, the case advanced at trial against Sally Clark was precisely that, that there had been that episode in the hotel bedroom?
A To an extent we – well, I cannot speak for leading counsel who presented the case but to an extent we had to accept that the nose bleed incident had occurred; the defence called three witnesses to whom Stephen Clark had on the day told about the nose bleed incident, but there were no medical records of it, we could find no trace of the two first aiders who had apparently come from the hotel, and we could find no trace of a doctor who Stephen Clark had allegedly spoken to about the incident.
Q Can I just pause there? The Committee have seen the television programme and on the programme one of those who asserted that there had been a nose bleed was a woman called Liz Cox?
A Yes.
Q That was clear evidence, or some evidence, that there had in fact been a nose bleed?
A I do not think she saw it. It is a long time since I saw the programme but I do not think she actually saw the nose bleed. She was reporting hearsay remarks from Stephen Clark.
Q Correct. Leaving aside the other evidential matters that you touched on, the absence of any corporation of the incident through other witnesses---
A Yes, there was no independent corroboration.
Q If I can get back to Professor Southall’s intervention, what he was saying was that because in cases of intentional suffocation you get a coincidence in temporal terms of bleeding, that therefore, assuming a nose bleed did take place at the hotel in the bedroom, and absent any medical condition to explain it, assuming you discard a spontaneous bilateral nose bleed in a very young child, therefore his proposition was it must have been Stephen?
A Yes, and clearly very important.
Q Put it very simply, stripped of any other elaboration that is what it came down to?
A Yes.
Q But that, of course, when you in the CPS became aware of that proposition from Professor Southall, of course was inconsistent with the case that you had been advancing at trial?
A Yes.
Q Clearly, in terms of the forthcoming appeal it was inconsistent with the position adopted by the Crown to uphold a conviction?
A Yes.
Q But that in any event the information which you had received – and I am not criticising you at all; it was quite right to do what you did – you passed it on to Sally Clark’s solicitors?
A Yes. It was potentially very important for her.
Q Potentially very important because, so far as you were able to say – and you are not in a position to make a judgement – it was information which might go towards demonstrating that there had been a miscarriage of justice?
A Absolutely.
Q And that rather than she being the perpetrator, therefore, it was or might have been her husband?
A Yes.
MR COONAN: Thank you.
Re-examined by MR TYSON
Q Can I ask you, Mr Blomeley, to look at page 58 of the bundle of documents?
A Can I just know what this document is?
Q I will explain what the document is. What this is is a report or the middle of a report by Professor David, who you are aware was an expert who was subpoenaed by the defence to give evidence in the criminal case as a result of a report that he had written in the concurrent care proceedings?
A Yes.
Q He then wrote a subsequent report in the care proceedings, which you can see from the title at the top of page 58 was in September 2000?
A Yes.
Q And the purpose of this report was, as far as the care proceedings was concerned
– I expect that Professor David will tell us – was to evaluate Professor Southall’s contribution or otherwise to the proceedings?
A Yes.
Q And in the course of this evaluation he went through the Crown’s evidence and dealt with the note of the incident from, as we can see on page 58, from what Professor Meadow was saying, he went through the transcripts of that, and turning over the page to page 59, he went through what Professor Berry said about timing of nose bleeds. Perhaps before you answer any question, can I just ask you to read to yourself pages 58 to 60, i.e. paragraphs 17 to 24? (Pause)
A Yes.
Q The question I asked in relation to paragraphs 17 to paragraph 24 is this. Is there anything there that has been inaccurately recorded by the professor from your own knowledge of the case – inaccurately recorded by Professor David in those passages?
A Clearly there are parts of Professor David having conversations with the experts that I was not party to.
Q I will rephrase that. Anything arising out of his analysis of the transcripts which you would wish to draw attention to?
A It is very difficult for me.
MR COONAN: He has not seen the transcripts.
THE WITNESS: I saw the transcripts as part of the appeal. It was a long time ago. I am not really in a position to say.
MR TYSON: From your recollection of the case has Professor David recorded anything wrongly about what those experts said about nosebleeds?
A Certainly not in my recollection, although I really would say that I have not seen those transcripts for probably two years and I was not looking at them particularly specially with this in mind so I would not put too strong – I would not take too strongly what I have said on that, but yes, I do not see anything that I feel is inaccurate in there.
Q Would you please turn to page 62 in that report and read to yourself paragraph 30?
A Yes, I have read that.
Q Accepting that you are not a medical expert and accepting that it is a long time since you were involved in the nitty gritty of this case, do you have any comment on the contents of that paragraph?
A Inasmuch as it is interpretation I am surprised that Professor David has said, “In short Professor Southall has added no new information at all.” It is rather dismissive. There was – we are talking nuances but there was a certain amount of new information presented to me that he felt that he nosebleed was immediate and the others felt that perhaps it need not be. At that stage my interest to an extent lapsed because I passed the matter over to the Appellant’s solicitors, so I may be wrong as far as Professor David is concerned, perhaps he did not mean it this way but it seems rather dismissive, whereas in fact I found Professor Southall’s information quite helpful, as I think it was intended to be and I would not dismiss it quite as Professor David has dismissed it there, although again it may be just that his terminology is misleading.
MR TYSON: Thank you very much. Perhaps this witness may be released.
THE CHAIRMAN: Mr Blomeley, I think that therefore brings your evidence to this Committee to an end. I would like to thank you for coming to help us. Thank you very much.
(The witness withdrew)
MR TYSON: Detective Inspector Gardner, please.
JOHN GRAHAM GARDNER, Sworn
Examined by MR TYSON:
Q Would you give to the Committee, please, your full names?
A My full name is John Graham Gardner.
Q Your current professional address?
A Professional address, I work at Macclesfield Police Station, Cheshire.
Q Mr Gardner, I represent the General Medical Council and Mr Clark. The gentleman opposite me represents Professor Southall and the ladies and gentlemen opposite you are the Committee on Professional Conduct. In January 1998 were you working for the Staffordshire police?
A No, I was not.
Q Cheshire police, I am sorry?
A I was working for the Cheshire police.
Q You were a Detective Inspector?
A I was a Detective Inspector within the Macclesfield Division of the Cheshire Constabulary.
Q Have you since the events which we are going to go to, have you since retired from that post in May 2003?
A That is correct.
Q You currently have a civilian role in the file management unit of Macclesfield Police Station following your retirement?
A That is correct.
Q Were you the senior investigating officer into the death of the Clark infants?
A Yes, I was.
Q Following Sally Clark’s conviction in November 1999, were you aware that she was mounting an appeal which was due to be heard in June 2000?
A That is correct.
Q Just before the hearing of her appeal in June, were you aware that Channel 4 put out a television programme on its Dispatches series about the case?
A Yes, I watched the programme. I think it was broadcast on 27 April, if I remember rightly.
Q After the screening of that programme, did you receive a telephone call from another officer?
A I did, yes.
Q Can you remember who that officer was or where he came from?
A The officer concerned, I have now learned again, is PC Gibson, an officer from the Staffordshire police.
Q Can you recall now, or would you need to make reference to a note, the gist of the conversation that you had with that officer?
A I think the gist of the conversation I had with him, he drew my attention to the fact that there was a person called Professor Southall who he knew who had made contact with the office that he worked in and he said he had raised some concerns about part of the content of that particular television programme.
Q Do you remember now what the concern was that Professor Southall had raised?
A I think the initial concerns were about the part of the programme where baby Christopher, the first child of Mr and Mrs Clark, had suffered a nosebleed whilst in a hotel room in London. At the material time Stephen Clark was the only parent who was with the child. What I was told is that…
Q What you were told by whom?
A Sorry, what I was told.
Q By the officer?
A I think the officer told me that basically at that stage what Professor Southall was alluding to was that, if the nosebleed, if it was a deliberate act, the nosebleed would mirror the point of the abuse, so in actual fact the only person who would be with the child at that particular point of abuse would be Mr Clark.
Q So that is what you understood the information that you were getting from the officer from the Staffordshire force?
A Yes.
Q As a result of receiving that information, did you notify any particular organisation?
A I spoke to the Crown Prosecution Service.
Q As a result of speaking to the Crown Prosecution Service, did you receive any instructions from them?
A I was asked to make further contact – or asked to make contact with Professor Southall and arrange to actually go and meet him, probably on two counts – just to widen what he was actually saying and also whether or not he was prepared to expose himself by name, etc. and to who we could make any notification of what he was saying.
Q Did you meet him?
A I did, yes. I met him in premises in Leek on 2 June of that year.
Q Prior to meeting him, had you met him before?
A I had not, no.
Q Prior to receiving the call from the Staffordshire officer, had you heard of Professor Southall?
A I had not, no.
Q Did you prepare a memorandum relating to your meeting with Professor Southall?
A Yes, I did. Yes.
Q Was that memorandum made on the same day as the meeting?
A I think it was, yes.
Q Could you look, please, to the bundle of documents to your right and look, please, at pages 18 and 19. If I ask you to look at the manuscript 18 and 19 at the top right-hand page. I wonder if my solicitor could just approach this witness and put him in the direction of the right document.
THE CHAIRMAN: Yes.
MR TYSON: Looking at that document of two pages, is that the memorandum that you were telling the Committee about, that you made?
A Yes.
Q That signature at the bottom is yours?
A Yes.
Q The Committee has had this document read to them yesterday, Mr Gardner, so perhaps I need not take you all through it. On the first page, may I ask you this. We see in the body of the middle paragraph, can you see that were we pick it up,
“He stated that his concerns had been raised about the case of Sally Clark having watched the Dispatches programme”?
A Yes.
Q It says:
“He stated his concerns were initially twofold. He thought that Stephen Clark came over as insincere and as an attention-seeker and more importantly that he was alone with Christopher during the nose bleeding incident at the Strand Palace Hotel”?
A Yes.
Q Then you go on to say:
“Dr Southall appears adamant that had he suffered a nosebleed, unless there is some rare medical reason such as leukaemia, it was a deliberate act to suffocate and the bleeding would have been at the point of the abusive act”?
A Yes.
Q Could you assist the Committee with the word “adamant”? Did he have, in your view, strong views about this matter, or what?
A I think he had strong views when he said that but obviously then he qualified himself by saying he would have to have further information.
Q The further information he indicated to you that he needed was to know exactly how Christopher had suffered difficulty in breathing, amount of blood, necessity to resuscitate, visual observations and what records were made?
A Yes.
Q You were not in a position to give him any of that material, were you? Were you in a position to give him that material?
A No, I was not.
Q Over the page, you discussed – we can see in the first big paragraph that you discussed the death of Christopher and you are recorded as saying:
“Without the benefit of full facts Dr Southall put forward his thoughts on how Christopher may have been abused and subsequently killed by Stephen. On the night in question Stephen could have called home prior to attending the works function, abused the child and then left the house, locking the front door and leaving Sally along with the child.”
Was there any evidence at the criminal trial, from your recollection of the case, that supported that account?
A No.
Q Then he deals with the second death to you and says he commented on Stephen’s change of story in relation to what time he had actually got home. Did he comment on Stephen’s account in a way that reflected credit on Stephen Clark or a way that did not reflect credit on Stephen Clark?
A I think he commented on the fact that he was aware that Stephen Clark had changed his story in relation to the time he got home. As simplistic as that, rather than giving credit or not giving credit.
Q Did he indicate to you what his views of Stephen Clark were?
A Well, as I said, I have to obviously make some reference to that because it is more than four years ago, but he told me that he thought, I think I have used the words he was somewhat insincere and attention-seeking.
Q Then in the last paragraph that was your views of what you had been told and those are the views that you passed back to the CPS? Is that right?
A Yes.
MR TYSON: Would you wait there, Mr Gardner? You may be asked some questions.
Cross-examined by MR COONAN:
Q Mr Gardner, as you have just commented this was quite a long time ago?
A Yes.
Q That you had this conversation with Professor Southall. This memorandum, of course, was never, as it were, sent to him?
A No.
Q So that he could see say whether or not it had captured everything that either you had said or he had said?
A No. It was in actual fact prepared in strictest confidence between me and the CPS.
Q Absolutely and, indeed, it says so right at the top of the document?
A Yes.
Q At the top of the page. The primary purpose was really to capture what he was saying about his thoughts and views on the case, was it not?
A That is correct, yes.
Q Let us just have a look at a number of the elements of the document. Can I take you to page 18, first. The beginning of the second paragraph, you have written, “It is apparent that Southall…” Do you see that?
A Yes.
Q “…has made similar contact with the Crown Prosecution Service.” I am going to suggest to you that that is not correct. He had not. We have just heard from Mr Blomeley from the CPS. It may well be perhaps in itself a small matter but that your understanding is wrong there?
A I was under the impression – whether or not Mr Blomeley has written to the defence and the Social Services after I have spoken to him and I certainly alerted Mr Blomeley. I was under the impression that Professor Southall had contacted the CPS himself, but if that is wrong, that is my assumption.
Q Very well. It is a long time ago and it is not a criticism. I am just concerned really with the totality of the document and the accuracy of one or two aspects of it. Now, this meeting in Leek, though it is four years ago, was not over in half an hour, was it? You spent a little bit of time together discussing the case?
A Yes, we did, yes.
Q I am going to suggest to you – I cannot put precise minutes to you - but it was of the order of about two hours?
A I cannot remember exactly how long it would be, to be honest, but it would be, I would have thought, at least an hour plus, yes.
Q Two hours might be right?
A It might be right, yes.
Q Within the body of the document, if we just run through it, the Committee of course have got it and they can read it in due course but if we can short-circuit it to a certain degree, we can do so. The first point is that Professor Southall made it absolutely clear to you that he was suspended from his position at the Trust?
A Yes.
Q He also indicated to you that before you and he discussed this matter, he had spoken to Professor Sir Roy Meadow and Professor Green about the case?
A Yes.
Q He made it absolutely clear at that stage that he had not had access to all the material – I am using the word “evidence”, I include there not only the evidence which was actually given at the trial but any of the so-called unused material?
A That is correct.
Q It is abundantly clear, is it not, that Professor Southall was concerned with the safety of Child A?
A Yes.
Q When you received everything that he had to say and over that period of time, you formed the view that he seemed genuine in relation to his approach and what he had to say?
A Yes, he did.
Q Now I want to ask you about a number of the things which you may have said because, you see, if it might have been either an hour or two hours, one has got to try and imagine for a minute how you were filling the hour or the two hours. Professor Southall clearly told you what his thoughts were. I now just want to explore with you what comments you were making to him?
A Right.
Q Because this memo. was not there to capture what you were saying to him, was it?
A No.
Q It was to capture what he was saying to you?
A Yes.
Q Right. So, let us just see. And it may be four years ago you cannot remember but, if you cannot remember, say so?
A Okay.
Q And if you think it might have happened then again you can tell us?
A Right.
Q Now I just want to ask you, then, about the circumstances of Christopher's nose bleed in the hotel. During the course of the discussion, both of you worked on the basis that there was evidence of the fact that a nose bleed had occurred?
A There was evidence of the fact that a nose bleed had occurred because I think Stephen Clark had said a nose bleed had occurred and there were a number of his friends and his wife who had confirmed that.
Q Absolutely. And, equally, during the course of this conversation that you also confirmed, or said, or commented that at the time of the nose bleed Stephen Clark had reported that the child had had difficulty in breathing?
A (No reply)
Q We have seen that and we have seen him say that on the television programme?
A Going back to watching at the time, well, I will accept that. I cannot actually recall.
Q And, equally, that you commented that there had been no evidence available that Stephen Clark had called a doctor?
A To be absolutely fair about this, I believe that during the time of the incident the only corroboration that we could find is that there was a telephone call made from the hotel to the regular doctors' practice.
Q I am sorry, just pause there. My learned friend is on his feet.
MR TYSON: I think it is quite clear that the witness is misunderstanding my learned friend's question.
MR COONAN: Yes, I was just about to intervene. You are quite right:
Q (To the Witness) I just want to make the question clear.
A Right, okay.
Q The thrust of the question is to try and establish what the content of any exchanges there were between you and Professor Southall?
A Right.
Q Now it may be that, in order to answer that question, you have got to go back and think
A Yes.
Q as to what the state of affairs actually was and so it is in two parts, do you see?
A Yes.
Q So, my question was whether you can agree with my suggestion that there was an exchange between you that is the two of you in Leek
A Yes.
Q to the effect that, yes, there was in fact no evidence that there had been a doctor called to the child in the hotel?
A I think the problem that I have is that I had gone to speak to Professor Southall and I was trying to elicit information from him about his views. I do not think I went down, and I think I mention it here where I say, "Without discussing the case at length". I do not think I went into every aspect of the case because, unless it has actually been given in evidence and put into the public domain, I would not be discussing anything that I knew about that had not actually been mentioned in Court.
Q Mr Gardner
A So, I have not filled him in with everything that has gone on.
Q I am not suggesting that.
A No.
Q I am not suggesting that.
A No.
Q The fact that there was no evidence that a doctor had been called was a matter within the public domain?
A Yes.
Q In the sense that no evidence was called at trial to that effect, was there?
A There was no evidence called at trial, no.
Q No. And that would have been a fact that you would have been in a position to disclose to Professor Southall?
A If I did disclose it to him, yes.
Q Yes. Well I am suggesting you did, you see?
A Yes.
Q Do you think you might have done?
A I cannot remember doing, to be honest.
Q All right.
A As I say, I think it was more a case of I wanted to elicit Professor Southall's views on the matter.
Q Yes, I understand.
A I am not interviewing him as a potential witness, or anything like that. I am not writing down a statement. I have not got a tape recorder running. I am just wanting to find out what he has to contribute, who he wants to contribute it to and then move on from that particular point.
Q I see. Now, you see, the two of you are sitting down in this room for maybe one hour or two hours?
A Yes.
Q And during the course of the discussion we have a situation, do we not, where Professor Southall when he is giving his account/his exposition/his proposition
A Yes.
Q at the same time occasionally he is asking you questions? Let me give you an example. He asked you whether the Police had in fact investigated whether or not a doctor had in fact been called to the hotel and you said to him, "Well, there has not been any investigation of that"?
A Well, that is wrong. That is totally wrong, because in actual fact at the trial the receptionist from the doctors' surgery actually attended as a witness to say that there was no record of that doctors' surgery being used.
Q Yes.
A So, that is wrong.
Q Yes. So, it comes to the fact that there was no positive evidence, is what it comes to, of a doctor being called?
A The normal practice the easiest way is to if I go back on recall. My recollection of this issue is that the normal practice is that the hotel, if a doctor is requested, will contact a particular practice that is near the hotel.
Q Yes?
A And they will supply a doctor. We went to that particular surgery, we had the records checked at that surgery, the receptionist from the surgery was actually a witness at the trial and said that they could not find any record, and enquiring with the doctors, of anybody who had spoken to a person at the hotel on that particular day.
Q Right, right.
A The problem is that, being scrupulously fair, there is I think on the telephone billing a call that goes from the hotel to the doctors' surgery about the relevant time, but we never made the connection.
Q Right. Now
THE CHAIRMAN: Mr Coonan, I hesitate to interrupt, but I mean I do think we have got beyond what Mr Gardner remembers to his description of the facts that emerged at the trial.
MR COONAN: Yes.
THE CHAIRMAN: I think there does some to be a disparity between your question and the complexity of the answer.
MR COONAN: Yes, I entirely agree. It was my learned friend's point initially and I think, no criticism of Mr Gardner, that it would be
THE CHAIRMAN: No, not at all. I just think that there is this misunderstanding between the question and the answer.
MR COONAN: Yes. Well, let me move on and we will see how far we get:
Q (To the Witness) The question of the nose bleed in the hotel loomed large in the discussion between you and Professor Southall, did it not?
A Yes.
Q And do you remember Professor Southall saying to you, "Well, was there in fact any evidence at trial of any medical condition to explain the cause of the nose bleed"?
A Again, I cannot recall whether he said that. It would be probable that he did.
Q I am sorry?
A It would be probable that he did, yes.
Q Yes. And, if he had, what would have been your answer?
A I would have said there was not any evidence.
Q Thank you. And do you remember saying to him that the Crown's experts medical experts had said in evidence that there could be delay between an act of intentional suffocation and the onset of bleeding?
A I do know that was said at the Crown Court by the experts.
Q Yes. And there would be no reason why you would not have mentioned that fact to Professor Southall?
A I do not think there would be any reason why I would not, no.
Q No. Now, can I then move on to the circumstances of Christopher's death. Now, I appreciate that this has now moved away from the circumstances of the nose bleed in the hotel and so we are on a different topic now.
A Right.
Q But I am going to suggest that this topic was touched on during the course of your one hour or two hour discussion. Do you remember saying or confirming the fact, which I suggest is a true fact, that originally Christopher's death was attributed to a respiratory infection?
A That is correct.
Q And, again, do you remember observing, or mentioning, or commenting that when Christopher was found he was alone with his mother?
A Yes.
Q And did you mention, too, that there had been a problem I am sorry, my learned friend is on his feet.
MR TYSON: It is the same point. Perhaps you can make it absolutely clear to this witness that you are putting to him the contents of the conversation with Professor Southall
MR COONAN: Yes.
MR TYSON: rather than what actually happened at the time?
MR COONAN: I rather thought on this occasion Mr Gardner did understand, but I will do it again. I will do it again.
MR TYSON: I am grateful.
MR COONAN: (To the Witness) As I understand it, Mr Gardner, you have accepted as a fact that the original cause of death at post mortem of Christopher was respiratory infection, yes?
A That is right.
Q And that that was a fact which you were in a position to mention to Professor Southall?
A If I did, yes.
Q Yes. And I am suggesting that that in fact was a fact that you did mention to him during the course of the Leek discussions?
A Right.
Q Do you accept that you may have done that?
A I may have done that, yes.
Q Yes. And there is no reason why you should not?
A I do not think there is, no.
Q No.
A But, of course, I have to interrupt you here. I am not taking a verbatim account off Professor Southall.
Q No.
A I am not timing an interview. I am not recording it contemporaneously. I am just trying to get some information from him and then later on, if there is any necessity to formally interview, then I would have done.
Q Well, Mr Gardner, we understand all that.
A Yes.
Q But I have to just explore with you
A Yes, sure. Yes.
Q what may have been mentioned by you in relation to what were in fact the facts arising in the case, all right? So, I am just concerned with the exchanges between you and him?
A Yes, but at the end of the day when I went to see Professor Southall, I am trying to find out what he knows about the case at that time and how he has come up with these views.
Q I agree.
A I am not going to sit there educating him about everything that happened within the trial and everything I know so I can elicit his views. I want to know why he has contacted me and contacted the Police in the first place.
Q There is no dispute about that.
A Yes, yes.
Q But, equally, it is not just a one way process?
A Oh, it is not. No.
Q No.
A An interview is two people talking, is it not?
Q Yes, absolutely.
A If you do not talk then there is going to be no ...
Q Absolutely right.
A Yes.
Q Now, can I just stay with Christopher's death for a moment. There is one further point I want to ask you about. We will recall from the television programme, and indeed it was the position in the evidence at the trial, that Stephen Clark, such was the evidence, had been at the party that night when he told the jury that he had got a telephone call and he had then gone to the house?
A That is my recollection, yes.
Q Yes. And do you remember Professor Southall saying to you whether Stephen Clark's account for that had been checked out by the Police?
A He did ask me that, yes.
Q Yes. And did you say, just simply "Yes" or "No" for the moment, that that account had not in fact been checked?
A I did not say that, no.
Q Yes. I am sorry?
A It had been checked as best that we could. The point that we did check it, we asked Mr Clark about that particular about the time that he came home. The evidence that we had available was and in actual fact I think it is Mrs Clark who said this that her husband, Stephen, had contacted her at half past 5 to say he would not be coming home.
Q That is right.
A It did not come from Mr Clark himself.
Q No. But the thrust of my question is that Professor Southall, I suggest, was asking you whether the Police had checked from third parties the account that he was giving that he had been at a party and the time he had been at the party and so on?
A We had checked
MR TYSON: I am sorry to interrupt, but again I think the Officer is in danger of not understanding the question in that merely it relates to the discussions between the Professor and the Officer.
MR COONAN: Well, I will put it again:
Q (To the Witness) I am sorry about the interruptions.
A No, it is quite all right.
MR TYSON: Yes, so am I.
MR COONAN: It is not a criticism of Mr Tyson. It is not a criticism of Mr Tyson, but we have just got to get this right:
Q (To the Witness) I am simply asking you whether you recall Professor Southall raising the question of whether or not the Police had in effect checked what Stephen Clark had said checked with third parties about his movements that night?
A My recollection is that I told him that we had made checks and I did not elaborate on that what we had actually done.
Q Well, I have to suggest to you that your memory is at fault there and that what you did say to Professor Southall was that checks in relation to third parties had not been done and that to use your expression, which I suggest you did say to him, was that that was now too late?
A Now too late? I do not recall saying that bit.
Q Right. Now, I want to move on to Harry's death. During the course of exchanges between the two of you in relation to that topic the question of Stephen Clark's account of the time at which he got a taxi home was raised, was it not?
A I think I have put here that he was aware that there was a change of story, yes.
Q Yes. And that I cannot with the passage of four years put to you the precise words used by you or by Professor Southall, all right?
A Right.
Q But I just want to suggest to you that the gist of what the exchange was was that Stephen Clark had obtained and I use that word neutrally a supporting statement to support his assertion that he had arrived home earlier than in fact he did?
A A supporting statement?
Q From another source? A receptionist at the taxi firm and so forth?
A No, that is not correct. My recollection and then we are going back to what I recollect about the investigation is that in actual fact Stephen Clark said he had come home earlier
Q That is right.
A than he actually had done.
Q That is correct.
A Supporting that he has come home earlier, you were putting?
Q Yes, that is what I have suggested.
A No, he had come in actual fact the taxi put him coming home later.
Q That is right.
A Yes.
Q But that initially Stephen Clark had advanced the proposition that he had come home earlier than in fact he did?
A During initial questioning I think that Mr Clark did, yes.
Q Yes. And that all I want to establish with you is that you commented to Professor Southall that in that connection Stephen Clark had obtained support for his assertion that he had come home earlier from a third party source; in other words, a statement or support from the taxi firm?
A I am sorry, I am missing this point that you are trying to make?
Q All right.
A What you are saying to me is that Mr Clark had support from a third party in statement form that he had come home at a particular time?
Q Or something of that order and that you had mentioned that fact to Professor Southall?
A No, it was common knowledge at the trial that Mr Clark's initial time that he said he had come home was refuted during the evidence.
Q Yes.
A Because, at the time the trial was actually going on, a taxi log was found and a statement obtained from a taxi owner that meant that Stephen Clark had actually got a taxi much later in the evening.
Q Right.
A It is the other way round, unless we are at cross purposes.
Q But there is no doubt that you and Professor Southall had a discussion?
A Yes, we did.
Q Can I just move on to the question of injuries? Was there an exchange between you and Professor Southall about the existence of injuries found at post mortem on both these children?
A With the passage of time I would tend to be wary about saying I had gone into any great detail about the injuries. I would have thought that if he is discussing them with more skilled practitioners, medical experts, you would have gone into that particular subject with them rather than with me.
Q That may well be right, but all I am concerned about is whether you can remember now four years later whether there was any exchange between you and him about the existence and/or the nature of the injuries on the two children?
A I think I would have to err on caution and say I cannot remember.
MR COONAN: That is all I am going to ask.
Re-examined by MR TYSON
Q You were asked by my learned friend whether Professor Southall made it clear to you that he was suspended and you said that he did make it clear to you that he was suspended?
A Yes.
Q Did he make it clear to you that he was not permitted to get involved in any child protection work?
MR COONAN: I am sorry, but the premise of that question I object to as we have not yet heard the evidence. I do not accept that proposition is correct at this stage.
MR TYSON: Whether my learned friend accepts the basis of the proposition of the question or not, I am still entitled to ask the question. If it turns out that my proposition is flawed, so be it, but I am still entitled to ask the question.
THE LEGAL ASSESSOR: I agree.
MR TYSON: Did Professor Southall tell you that he was prevented from being involved in any child protection work?
A I cannot recall him saying that.
Q You were asked about the question of this medical help being sought at the time of the Strand Palace Hotel nose bleed?
A Yes.
Q It is probably quite a small matter but can I suggest to you that at trial hotel records were produced that indicated that at or about this time a call had been put through by the hotel to a doctor?
A I gave that in the evidence. I did say that at the particular time within the time parameters a call had been made from the hotel to the doctors who usually support the hotel.
Q And the hotel logs confirmed that?
A Yes, the billing on the hotel – there was a call. There is nothing about the time and the content but there was definitely that evidence.
MR TYSON: I am obliged. I have no further questions.
Questioned by THE COMMITTEE
MS LANGRIDGE: Good morning. I just wanted to clarify, Mr Gardner. What was the outcome of the interview with Professor Southall?
A What was the outcome? Basically, nor more than I reported the facts to the Crown Prosecution Service in the strictest confidence. I know that things then developed in relation to other agencies such as the Social Services etcetera.
Q In relation to the, if you like, the criminal prosecution side of the argument, was it you or was it the Crown Prosecution Service who decided that no further action was required?
A It was the Crown Prosecution Service – they had the conduct of the case. Obviously, I would liaise with them but there was nothing generated to go back to Professor Southall from a police point of view.
MS LANGRIDGE: thank you.
THE CHAIRMAN: Just one question from me, if I may. Can I just come back to this time when you were interviewing Professor Southall and to the questions that Mr Coonan has asked about the conversation between you and Professor Southall. It seems to me that in answering Mr Coonan very often you were saying you might have discussed that rather than you were actually saying “I remember saying that”. How much of the conversation with Professor Southall do you actually remember at this stage, four years on?
A I think, to be scrupulously, I remember what I have put in the memorandum and what I have read through. This was not the criminal trial as such and you remember as you progress through an investigation this is something that has occurred and then I have never looked at it again, probably for the last four years. As I tried to explain, it is not a case of going and having a discussion; I am not treating Professor Southall as a potential witness, I just want to go and speak to him about what he has got to offer. So I do not think I would have gone into any great degree – in actual fact I do put in the memorandum I did not discuss the case at any great length.
Q If I said to you, without prompting, do you remember any issues that Professor Southall raised with you at that interview, what would be your answer?
A If you wanted me to be absolutely certain of that answer, I would say I could only refer to what was in the memorandum in all honesty. If I start talking about the gist of the conversation I would be starting to guess what was actually said.
THE CHAIRMAN: Thank you. Mr Coonan?
MR COONAN: No, thank you, sir.
THE CHAIRMAN: Mr Tyson?
Further re-examined by MR TYSON
Q Just one question arising from what the Chairman said. If the professor had told you that he was prohibited from doing any child protection work, is that the kind of information you would have put in a memorandum?
A I have got to be honest and say yes, because it would flag up something straight away that I would have to tell the Crown Prosecution Service.
THE CHAIRMAN: Mr Gardner, I think that brings us to the end of your evidence before this Committee. I would like to thank you for coming to help us today.
MR TYSON: Can he be released?
THE CHAIRMAN: Yes, certainly.
I think we have been running quite a long time and I think we might actually take a short break. We will stop now and start again at 12.10.
(The Committee adjourned for a short time)
GUY MITCHELL, Affirmed
Examined by MR TYSON
Q Could you give the Committee your full names, please?
A My full name is Guy Mitchell.
Q And your professional address?
A Presently – it has changed since I did my witness statement – I presently work for CAFCASS in Liverpool in Albert Dock.
Q Mr Mitchell, I represent the General Medical Council and Mr Stephen Clark; Mr Coonan, opposite me, represents Professor Southall and the ladies and gentleman opposite you constitute the Committee. Are you a consultant social worker?
A I am now a family court adviser, but I was a consultant social worker at the time I filed my evidence.
Q And you now, as I understand it, work for or with the organisation called CAFCASS?
A I do.
Q Are you in a position to remind the Committee what the initials CAFCASS stand for?
A When I am sober, yes – Children and Family Court Advisory and Support Service.
Q Have you for a number of years been a person who used to be called a guardian ad litem and is now called a children’s guardian?
A That is right.
Q Is it the role of a guardian, effectively, to safeguard the interests of children when children are involved in the care process?
A Yes.
Q Is it the role of the guardian to, as it were, look after the best interests of the child for whom you are the guardian?
A Yes.
Q And in order to do that you have your own solicitor and by your own solicitor you appear as a party in any care proceedings?
A Yes. The only slight qualification is I do not appoint the solicitor for myself, I appoint the solicitor for the child. The solicitor is always the child’s solicitor. That becomes quite important when you are dealing with older children because when older children express their wishes there may be a conflict of interest. Of course, that did not occur in this case.
Q And our role as a guardian involved you conducting your own enquiries and, as a result of your own enquiries, presenting a report to the Court setting out your own views as to what is in the best interests of the child?
A Yes.
Q And is it an incidental part of the guardian’s role in care proceedings that the guardian, through the child’s solicitor, tends to be the person who instructs experts when it is agreed that there should be a single joint expert in care cases?
A Yes.
Q And in December 1998 were you appointed for the child we know as child A, Stephen and Sally Clark’s third child, were you appointed as child A’s guardian?
A Yes.
Q And in the care proceedings that were running in parallel with the criminal proceedings involving the mother, Sally Clark?
A Yes.
Q And we have heard from Mr Clark that on or around the birth of child A there was an interim care order and child A went to live with foster carers?
A Yes.
Q And subsequent to the conviction of Sally Clark in November 1999 is it right that child A was permitted to live with his father?
A Yes.
Q Perhaps you could help us as to a matter which Mr Clark told the Committee about but it is possible that he may not have been correct about. At the time that the child was permitted to live with Stephen Clark was there an interim care order still in force?
A Interim care orders, yes.
Q Did in fact interim care orders continue until, I think, December 2000?
A I have got a notoriously bad head for dates, but it was certainly after the first appeal.
Q And in the care proceedings, can you assist the Committee, was there an application made on behalf of Sally Clark to discharge any care order?
A Not that I can recall, no.
Q In your capacity as the guardian of child A did you form a professional view as to the quality of care that Stephen Clark was providing for child A?
A Yes, it was excellent.
Q Was there a view in the care proceedings that a final discharge could not be made about what to do with these series of interim care orders until the result of Sally Clark’s appeal was known?
A Yes.
Q To help you put the matters into context, Mr Mitchell, in June of 2000, bearing in mind your familiarity with dates, the Sally Clark appeal was heard. Are you aware that in April prior to that June there was a television programme on Channel 4 about the Sally Clark case?
A Yes.
Q And after that programme was put out, did you become aware that any person had raised any concerns about the case?
A Yes.
Q Can you assist the Committee as to – can you widen that answer?
A Yes. Initially all I was aware of was that a consultant paediatrician had become concerned about it. I cannot remember exactly when I became aware that it was Professor Southall but it was probably a few weeks after I first heard that the consultant paediatrician had expressed their concerns.
Q So you first heard that a consultant paediatrician had become concerned and then subsequently you acquired the identity of that consultant paediatrician?
A Yes. I think I said in my statement I could not remember exactly who it was who told me but I think it was probably Cheshire County Council legal.
Q You became aware of the concerns. Did those concerns in your professional view relate to or possibly impact on Child A?
A Oh, indeed.
Q Would you look at a document, please, which we have, called C3? (Handed to the witness) Perhaps we can look at this document together. It is Section 47 of the Children Act, 1989,which in its material part says under sub-section 1:
“Where a local authority”
- and we take it then to (b) –
“have reasonable cause to suspect that a child who lives or is found in their area is suffering or likely to suffer significant harm, the authority shall make or cause to be made such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.”
At this time were you familiar with the provisions of Section 47 of the Act?
A Just a bit.
Q Did you have discussions with any other professional at the time when Professor Southall’s concerns became apparent?
A Yes. I discussed it with the keyworker, Mrs Janet Ash.
Q When you say she was a keyworker, was she a social worker?
A Social Worker for Cheshire County Council with keyworker responsibility for looking after the interests of Child A.
Q Even on the limited information you had at that stage, did you and Mrs Ash form a view about whether this matter should be progressed any further?
A Given the nature of the concerns expressed by Professor Southall, it seemed to me that there was no alternative, that there had to be enquires made pursuant to Section 47.
Q Were you influenced in any way by making that, as it were, preliminary view, by the reputation of the maker of the concerns?
A Of course.
Q If at any stage it became clear that a milkman had rung up and expressed concerns about Child A, would you have dealt with the matter in the same way?
A No. I have to say I take what milkmen have to tell me very seriously as well but no, there is no doubt about it that Professor Southall’s reputation and what I knew of him did play a part in my thinking.
Q As a result of discussions between you and Mrs Ash, was Professor Southall invited to come and meet you and Miss Ash on 22 July 2000?
A I would not have remembered the date but I do remember that the invitation was extended and he accepted.
Q We can assist you. There is a bundle of documents before you headed C1. If you look at the top right-hand corner of page 26?
A I am there.
Q Reading through it, or flicking through it, to page 28, is that a note you yourself made, Mr Mitchell, relating to the notes of the meeting that you had with Professor Southall relating to Child A on that date?
A Yes.
Q You set out the background. Can I say that the Committee have read this or had this document read to them so I am just going to highlight various aspects of it. You highlight in the third line of the background that Professor Southall is a leading authority on the subject of suspicious infant death and that he came to the view that he did, you set out in the first paragraph, and that if he was correct about the hotel incident, if I can put it this way, you say that if he is correct, this meant that the wrong person was serving a life sentence and Child A was unprotected?
A Yes.
Q You set out the history of how it became known to you. You set out in the third paragraph how, as a result of discussions at a directions hearing in the High Court, it was agreed that the matter had to be taken seriously and Professor Southall had to be seen by you and Mrs Ash?
A Yes.
Q And that in preparation for the meeting the professor sent to you a copy of his paper in a medical journal called Paediatrics, entitled, “Covert Video Recordings of Life-Threatening Child Abuse, Lessons for Child Protection”?
A Yes.
Q May I just go back to the third paragraph of your background section at page 26 and pick out a line in the middle of that third paragraph for a moment, in your note, where it says:
“There followed some delay arising from Professor Southall’s difficult position at the hospital.”
Do you see that?
A Yes.
Q Did you ask Professor Southall about his “difficult position” at the hospital?
A I do not recall having done so.
Q Did Professor Southall tell you that he was suspended by his Trust?
A I already knew that.
Q Did Professor Southall tell you that he was prevented from involvement in any child protection work?
A I cannot remember. I cannot remember.
Q Would it be something that you would have noted?
A I like to think I would have done, although I like to think also that I would have approached that in an independent spirit because I admired the man’s work then, as I do now.
Q We have to go back nearly four years but did you know at that time, as far as you can recall, that Professor Southall was prevented from carrying out any further child protection work?
A I do not think I could have known or, if I had known, it had not logged and the reason I do not think I could have known was because at a certain stage in the evolution of these care proceedings we had considered instructing Professor Southall as the independent paediatrician within the care proceedings. Now again, I am afraid I am in a puddle for dates but if we were thinking along those lines, I do not think we could have known at that stage that he was prevented from doing child protection work, otherwise we would not have approached him, much as we might have wanted to.
MR COONAN: Again, the witness may be under the impression that that Dr Southall was in fact prevented from doing child protection work. I just want to make that clear again, that he may have assumed as a fact that he was so prevented.
MR TYSON: I put a proposition to you, Mr Mitchell, which is not necessarily accepted by Professor Southall. You went on in your report to deal with the subjects discussed. We go back to page 36. You there set out the view that Professor Southall put to you about nosebleeds in infancy. You set out that it was, at the top of our page 27 under “Stephen’s role”, that,
“It was understood by all three of us that Professor Southall’s knowledge of the case was derived almost exclusively from the Dispatches programme.”
Did he indicate to you that he had any other sources of information about the case?
A Again, it is a hazy recollection but I think I do recall Professor Southall telling us about his learning bits and bobs about the case from journals, internet and so forth.
Q Did you or Miss Ash give him any information about the case at that meeting?
A As I recall, the one thing that we did ask about, because it seemed fatal to his line of enquiry…
Q You did not ask him about it?
A No, I think we did, mentioned it to him at any rate, was that to the best of our understanding – and there was no evidence to gainsay this – when the first child died Stephen was not in the house. We could not see how he could have been responsible for Christopher’s death because he was, to the best of our knowledge, at an office Christmas party and therefore nowhere near the house.
Q That is perhaps why you said on our page 27 at the second paragraph, under the title, “Stephen’s Role”, that you and Miss Ash were sceptical about the Stephen theory; “After all, to the best of our knowledge he was not even at the house at the time of Christopher’s death”?
A Yes.
Q You say you might have discussed, mentioned that to him. Can you recall now the response of Professor Southall when you put that to him?
A I know it sounds very stupid but I cannot recall.
Q It is quite clear from the battery of “ifs”, if I could put it that way, in the two paragraphs on the top of page 27, that both you and Ms Ash considered a number of alternatives and that one was that it may be that, as a result of what Professor Southall said, that Stephen Clark was the murderer or it might be that Stephen Clark was unreliable as someone who was seeking to cover up for his wife’s murder?
A Yes, those were two of a number of possibilities, yes.
Q Two of a number of possibilities. As you say, in one line before the words “Conclusions Reached”, that either way these were serious matters?
A Yes.
Q Can you help the Committee as to this. About how long did the meeting between you and Professor Southall take?
A I have absolutely no idea at this distance, I am afraid.
Q Presumably after he left there was a discussion between you and Mrs Ash as to what you should do as a result of what you had learned?
A Yes.
Q It is quite clear under number 3, “Conclusions Reached”, that a further discussion was required with a wider audience in the care case to deal with what to do next, i.e. a strategy discussion?
A We thought a strategy discussion was required. A strategy discussion, perhaps I should explain, is not just a phrase that we used to say that we met. It is a small institution within the child protection system and a strategy discussion is required in the early stages of a Section 47 investigation when an allegation is made that concerns a possible crime against a child.
Q As you say, at the bottom of the paragraph under, “Conclusions Reached”, here was a very serious allegation raised by a consultant paediatrician with extensive experience in the field of life-threatening child abuse in infancy?
A Yes.
Q Then you set out, as it were, two of the things that the strategy discussion had to deal with, namely how open was it possible for the agencies to be in this particular time and was there a need for further criminal enquiries in general?
A Yes.
Q Also, going down to your next paragraph, was it safe to leave Child A with Stephen and was it possible to bring care proceedings to an end on the date that you had hitherto anticipated they would end?
A That is right.
Q Was there a discussion between you and Mrs Ash that in order to, as it were, for Professor Southall to perform a useful function, that he would need to see some of the care papers?
A Yes.
Q Did you conclude, at the bottom of 27, that the court should be asked to direct that he should see such of the papers – criminal, civil – relating specifically to questions of the alleged nosebleed at the Strand Palace Hotel?
A That is right.
Q Can you assist the Committee, please, from your experience as to the confidentiality or otherwise of documents and papers involved in care proceedings. Can anyone see them?
A Oh, no. While in care proceedings the principle is compete disclosure of everything to the legal representatives of the parties concerned, any other disclosure has to be authorised by the court and cannot be made without that prior authorisation.
Q So if, for instance, it is the view of the parties that a doctor should be instructed in care proceedings, is the normal course that the court should be approached (a) for leave for the doctor to physically see the child and examine the child and; (b) for the doctor to have leave to see all the medical documentation relating to the child?
A Yes. All or some. That is the point of it. The court is in control of the flow of information outside the parties.
Q I know I am leading on this and I apologise. Is it right that Professor Southall could not see any of the papers in the case unless and until a Judge had permitted that?
A That is correct.
Q As a result of your decision to have a strategy meeting, was a strategy meeting in fact held a few days later at Dean Row, Wilmslow?
A Yes. Could I just confirm that ordinarily Guardians do not decide that there should be strategy discussions. It is a local authority decision but, because we were already within proceedings and it is unusual for there to be an event of this kind within proceedings, the local authority and I were talking with one another all the while, so technically speaking, it was the local authority decision to convene a strategy discussion, a decision with which I was completely in agreement.
Q Again, rather unusually, were you invited to attend that strategy discussion?
A Yes.
Q Did the strategy discussion take place, as it were, in two halves; one with Professor Southall present and the second half when he was not present?
A That is right.
Q Turning over the page, do you produce the minutes of the first part of the strategy meeting, which goes from page 29 to 32?
A Yes.
Q And the second part of the strategy meeting which goes from Page 33 to 34?
A Yes.
Q Can you assist us, so far as it is material, with those present? John Gardner is a Police Officer. This is on Page 29?
A Yes, yes.
Q And Mark Sharples, who is he?
A He is a Police Officer.
Q He is also a Police Officer. Professor David, what was his role at that time in the Care Proceedings?
A Well, Professor David was the independent paediatric consultant that we had asked to provide an independent paediatric overview within the Care Proceedings.
Q When you say "we", do you mean the Royal "we" as in the Guardian had asked, or "we" as in all parties had asked?
A No, no, I do not mean either of those things. I mean that Patrick Wheeler and I together Patrick as the child's solicitor and I as the child's Guardian. The letter of instruction is sent out by the child's solicitor, but it is sent out on my behalf.
Q Yes. But was the letter of instruction solely on behalf of the Guardian, or was it on behalf of all the parties in the case?
A Oh, it would be a joint instruction.
Q So, he was the jointly instructed single joint expert?
A Yes, I think I have got there. Yes.
Q To give, as it were, a paediatric overview?
A Yes.
Q John Linney, who is he?
A He is a Senior Manager in Cheshire County Council Social Services Department, or was. I do not know if he still is.
Q Jan Ash, she is the Social Worker you have mentioned?
A Yes.
Q Patrick Wheeler, is he your solicitor?
A He is the solicitor for the child.
Q The solicitor for the child. I will get that right eventually. Guy Mitchell is you and Professor Southall we know. Claire Holland, who is she?
A Claire Holland was the Principal Solicitor for Cheshire County Council. The Principal Solicitor for children and family proceedings. She specialised.
Q And, again, this is a document which has been read to the Committee and they have seen it and so I will just pick out some parts of it. And that at that time, as is made clear in the first paragraph, that everyone was still awaiting the outcome of Sally Clark's appeal and there were in fact two issues for the Strategy Meeting set out by Mr Linney. One was the new information from Professor Southall and secondly was Social Services need to make a decision about the way forward in a forthcoming Directions Hearing. And it is made clear in the third paragraph why Professor Southall was present that following the "Dispatches" programme he expressed concerns. And then Professor Southall was asked to set out his concerns, which has been recorded in this note, that he had watched the programme and that he had many concerns about, going over the page, Mr Clark's involvement, and he gave his views about nose bleeds and how they occur when a child is suffocated and whether such bleeding is instantaneous or delayed?
A Yes.
Q And he set out his views which is recorded in this note on that issue. And did he indicate, if we can look at the third and shortest paragraph on Page 30, that he indicated that he accepted he did not know enough about all the facts that had been dealt with at trial, or any of the medical evidence, but that he was seriously concerned that if father had suffocated Christopher at the hotel it was unlikely he was not responsible for the two deaths?
A That is my recollection, yes.
Q And thereafter did members of the meeting ask him such questions as they wanted to ask him about the matter and those questions and answers are recorded from the bottom of Page 30 throughout the whole of Page 31?
A Yes.
Q And then at the bottom of Page 31 did the solicitor for the child indicate to Professor Southall that he could not at this stage give him access to any papers and clearly he would need Court approval for that, but that "... it may be possible for us to give access to certain papers once we have cleared the matter with the Court", and did Professor Southall indicate that he was prepared to give his view once he had full facts?
A That is my recollection.
Q That is the top of Page 32. And then he went on to say that he could do it immediately and did he clarify that he would be happy with the information about the nose bleed?
A That is my recollection.
Q Yes. And then, when everybody had asked that which they wanted to ask, was Professor Southall invited to leave the meeting?
A Yes.
Q And then we take it up to the subsequent second part of the meeting at Page 33 and 34 and, looking at the third paragraph of that minute, "It was made clear that so far as Social Services were concerned, this information from Professor Southall had to be pursued in accordance with Social Services Child Protection duties and there was concurrence with this view from the Guardian ad Litem and the solicitor for the child"?
A Uh huh, yes.
Q And was it thus agreed that he would be further involved by making an application to the Court in an upcoming Court appearance so that he could get the Court's leave?
A Well, he would not be making an application.
Q No, but an application would be made?
A Patrick Wheeler would be making the application on behalf of the child
Q Yes.
A for those papers to be disclosed to Professor Southall so that he could prepare a report.
Q Yes. And did the discussion then continue, and I am looking at the last two paragraphs of Page 33 and 34, as to what should be done with Child A in the interim?
A Yes. That was the big decision, frankly.
Q And was it an anxious decision?
A Well I mean I suppose to some extent all these decisions are anxious, but I kept coming back to the fact that Stephen was not present when Christopher died. Stephen was doing an excellent job looking after Child A. While we appreciated the concerns that had been raised by Professor Southall, we took the view well, the Local Authority took the view and I agreed with them is technically how it goes that the least worst thing to do as far as Child A was concerned was to leave him with his dad while the questions were followed up.
Q Yes. And looking over the page at Page 34, the second paragraph, did John Linney conclude in summary "... that the information that had been received by Professor Southall was not particularly new information, but it had been presented in such a way which as highlighted by Professor Southall, has implications as to Mr Clark's suitability as a future carer of A"?
A Yes. To be honest, I do not actually recall anybody saying that it was not particularly new. They may well have done and I do not quarrel with it, but I do not recall it. I think the thing that I remember as being new and being important and requiring checking up was not so much new information as a new interpretation of old information. I mean we all did know that there had been, according to Stephen, a nose bleed. I think it is fair to say that I certainly as a lay person, and I can only speak for myself, had not appreciated the possible significance of that nosebleed.
Q The matter did go back to the Court and can I ask you, please, to look at forgive me Page 100 in this bundle. Perhaps to put it in its context perhaps you ought to look at Page 99, which gives you a date under the address of 10 August 2000, and could you look please at Paragraph 3?
A Yes.
Q And Paragraph 4?
A Yes.
Q Can I assist you on the basis of the superb photocopying here that it appears that the first line reads, "Leave to Professor David to meet with Professor Southall on the basis that ...", and then we come to the second line, "... Professor Southall sets out in writing in advance of any meeting the points of concern that he has as a result of his interest in the case"?
A Yes.
Q And is it a fair comment on that that it turned out that, notwithstanding the discussions that you and the Local Authority had, the Care Court did not permit Professor Southall to see any of the care papers?
A I suddenly cannot remember, but I take your word for it.
MR TYSON: Well, I do not know whether my learned friend would permit me to lead upon what Paragraphs 3 and 4 mean?
MR COONAN: Well they are self evident, are they not?
MR TYSON: (To the Witness) It is not my role to lead you too much, but it is self evident that Paragraphs 3 and 4 indicate that Professor Southall was not permitted to see the papers. He merely had to write out his points of concern on the basis of what he had and submit those points of concern
A Oh, I see what you mean.
Q to Professor David.
A You mean there is nothing in the Order that specifically says that leave was given?
Q That is correct.
A Yes.
Q And leave was not given.
A Okay.
Q Can I take you whilst we are looking at Orders, just for the sake of completeness, to Pages 102 and 103 in the bundle?
A Yes.
Q And this is an Order made by Mr Justice Connell on 20 December of that, and perhaps you would just like to read the recitals and Paragraph 1 to yourself?
A Uh huh, yes.
Q And does it follow from that that by that Order of 20 December that was the end of the Care Proceedings and no Order was made on the application for the Local Authority on the basis of some admissions that had been made relating to the threshold criteria?
A Yes.
Q And that it followed that Child A was free to live with then his father without, as it were, Social Services or anyone else involved formally with the case?
A That is right.
MR TYSON: Sir, that is all I have in chief and it may be a convenient time?
THE CHAIRMAN: Yes. I am conscious that it is five minutes to 1 and so I think this would be a natural break and then, Mr Mitchell, Mr Coonan will have an opportunity to question you after the break. I need to remind you that you are under oath and, therefore, you are not to discuss your evidence with anyone in the meanwhile.
And just before we break up, can I make the comment that people at this end of the room are finding the constant coming and going from the public gallery quite disruptive. Can I, therefore, ask that people who have to come and go would keep that to a minimum and that if they go they would try and do so quietly. The door bangs if you do not try to prevent it. We will try to do this on a voluntary basis but, if in fact it does not work, the only other way I can see of doing it is to allow people to come and go at natural breaks at the end, for example, of a witness giving evidence. However, I would much rather do it on a voluntary basis if I can ask people to do their best to assist us.
So, we will stop now and we will start again at 2 o'clock. Thank you.
MR TYSON: I do not know if it assists the Committee if I help them as to some housekeeping, sir? The next witness who I intend to call will be Mr Wheeler, who is the child's solicitor, and thereafter Dr Chipping who is the Medical Director of the Trust. That may or may not give us a convenient time, sir, bearing in mind that I then propose to call Professor David who is going to be a long witness.
THE CHAIRMAN: Yes, who may be some time. Yes, I understand. Thank you.
(The Committee adjourned for lunch)
Cross-examined by MR COONAN
Q Mr Mitchell, I am not going to detain you terribly long but there are a number of important questions I just need to touch on. During the course of your evidence this morning you offered the opinion in this way, “I admired the man’s work then as I do now”?
A Yes.
Q Would you like to expand on that a little bit?
A I have been in the child protection system one way or another for 31 years and I suppose when you have spent 31 years in a system and you have spent quite a lot of time, as I have done, in the family justice system then you get to instruct people whose work impresses you. There are thousands of children out there who have reason to be very grateful to Professor Southall. His work on Munchausen’s Syndrome by Proxy, his work on apnoea in babies – all of these things are well known, even to lay men like myself.
Q Did those sentiments influence you when you were thinking of instructing him during the course of the family proceedings as you indicated?
A Yes.
Q And at a time when you knew that he was suspended?
A That is the thing I cannot actually remember. I do remember that by the time these events occurred I knew that he was suspended. What I cannot remember – I do not want to reconstruct my memory – I cannot think that I knew he was suspended at the time we were thinking of instructing him, if indeed he was suspended at that time.
Q Let us just try and help, because if you look at page 25, this is a letter which is addressed to your professional colleague, Mrs Ash?
A Yes.
Q Would you just take a moment to read it to yourself?
A Yes. I have to say that rings a bell.
Q And it would be extraordinary, would it not, if Mrs Ashe, going about these matters, had not shared it with you?
A Yes, it would have been.
Q And, of course, as we can see, this letter predates the initial meeting on the 25th, the memorandum of which you provided for is at page 26?
A Yes.
Q You were aware that Professor Southall had gone to the authorities; he had gone to the police before contact was made between him and Mrs Ash?
A Yes.
Q And is it your view, your professional view, that whatever the ultimate assessment of his conclusions may or not be that he had no choice but to go to the authorities?
MR TYSON: Before the witness answers that, an issue arises upon which I seek the advice of the Legal Assessor as the question predicates he has been asked for his view, for his comment. This witness is not being put forward as an opinion expert witness, he is being put forward as a witness of fact who attended at various meetings and contributed in the way he did. I can see there are arguments that he has a professional expertise but to comment in the way that my learned friend seeks to comment or is asking you to comment is, in my respectful submission, going over the line in asking him to comment in an expert role rather than as a witness of fact and I would seek guidance from the Legal Assessor before the witness answers.
THE LEGAL ASSESSOR: Do you wish to reply?
MR COONAN: I do. This witness may be being called primarily by the Council as a witness of fact but that does not prevent me asking him questions based upon his expertise, his professional expertise, over (as he has indicated already) 31 years of practice. In the case of child protection issues I am entitled to ask him his professional view of Professor Southall’s initial contact with the authorities on the basis that such contact is – I do not propose to give evidence about this; it must be self-evident and, if necessary, I will ask the witness – of fundamental importance that the authorities are notified when there are concerns being expressed.
I am asking this witness what his view is from his standpoint, right at the core of the system, of Professor Southall’s initial contact. I am conscious too that opinions have been expressed by Professor David. He is not a guardian ad litem (Professor David) and I submit that I am entitled to elicit the evidence. Your learned Legal Assessor will see that the evidence is contained at paragraph 14 of the witness statement.
MR TYSON: The evidence certainly is contained in paragraph 14 of the witness statement, but purposely not adduced by me because I considered the witness was expert evidence where in effect this witness has been asked to comment on head of charge 6 of the heads of charge and to give, to use my learned friend’s explanation of my learned friend’s submission, as relying upon his professional expertise (and I use the words my learned friend used) as a guardian as to whether Professor Southall was or was not right to take the actions that he did at the initial stages. In my respectful submission, that is not the evidence that this Committee is entitled to receive from this witness, who is a factual witness and is not called, nor should he be used, as somebody to give his professional expertise view on the matters alleged in charge 6. In my submission, my learned friend is not entitled to ask the question.
THE LEGAL ASSESSOR: The rule is that the only witnesses who can give an opinion in the proceedings is an expert witness. Sometimes the line is blurred because some people are witnesses of fact and have some expertise, as Professor David has. If the Committee find it useful to know, it is useful for this witness to have that input.
MR COONAN: If you are asking if the Committee would find it useful to have this witness’s opinion as to Professor Southall’s action my answer is yes; it is a matter for the Committee whether they accept it.
THE LEGAL ASSESSOR: If this witness is an expert guardian ad litem, it would be useful to have that done, but it is not actually opinion, is it? It is a matter of fact.
MR COONAN: It could be couched in that way, but I put my submission firmly on the basis of Mr Mitchell’s expertise as a guardian ad litem. That is the core of it. I do not want to shut my learned friend out from further comment, but I say the witness can answer the question and it is for the Committee to decide whether they accept his answer.
THE LEGAL ASSESSOR: I think I would agree with that.
My advice is this. Some witnesses are clearly witnesses of fact and some are clearly expert witnesses and some have an element of both. It seems to me that Mr Coonan is saying we have an experienced social worker here who has expertise and my advice to the Committee would be this. If you find that evidence useful it is up to this Committee to admit it.
THE CHAIRMAN: I think the Committee would be interested to hear the answer to the question. What it does with that, I think is a matter for them. So I think you can go ahead and ask the question.
MR COONAN: Mr Mitchell, you have been privy those exchanges. Can I just perhaps take a step back and just lay the ground? In your own words, I would like you to tell us a little bit about how the child protection system works and how it is dependent – if it is – upon actions by others. Would you like to do that in your own words?
A I will try. The child protection system could not function at all unless people were willing to tell the relevant professionals about their child protection concerns. The system goes to some lengths to ensure that it is possible for that to happen so that, for example, in the case of a lay person who was worried about the neighbours next door, the system guarantees them confidentiality and anonymity on the understanding that if we did not make a guarantee of that kind then people would not talk to us about children who are at risk.
The system offers no such system of anonymity or confidentiality with respect to professional witnesses, but it has to be right that the child protection system has to be open to encourage people to talk about children whom they consider to be at risk. Part of my job as a children’s guardian in the conduct of my investigations is not simply to make a recommendation about what is in the best interests of the child but also to comment on the processes involved in how we got to where we are. Have the professionals who have been fooling around in this child’s life approached the thing according to the requirements of Working Together, which is the policy document published by the Department of Health which governs the way in which all the agencies are supposed to talk to each other. I thin one of the things that that document emphasises is the importance of communication and transparency; the duty that there is upon professionals to talk to other people about children, if they regard those children to be in any sense at risk. Let me put it like this. If the boot were on the other foot, supposing that Professor Southall had chosen not to contact the system and had turned out to be right, it would have been my duty to comment on his failure to communicate his doubts to the system at the time.
Q With those factors in mind, I put to you a particular proposition that in effect Professor Southall had no choice but to do what he did. What is your comment about that?
A There are two ways in which Professor Southall could have been wrong. He could have been wrong on the substance, he could have been wrong on the process. My view, and it is only relevant to this Committee so that you understand my point of view, if he was wrong on the substance but he was not wrong on the process. Given what he thought, given what he suspected, I do not think he had any choice but to tell the child protection system and the child protection system would have been seriously critical had he not done so.
Q Can I now take you to the memorandum of the 28 July on page 31? I am going to ask you to pick up the account, which is in fact your account, just over halfway down page 31?
A Actually, just for the record this is not my account. I wrote the memorandum of the meeting on 25 July. That was the meeting between myself and Mrs Ash. I did not write the minutes of the statutory meeting.
Q Who made the minutes of the statutory meeting?
A To tell you the honest truth, I do not know, but my best guess is that it would have been John Linney himself or Claire Holland.
Q The only reason that I have assumed that it was yourself is that your witness statement which was prepared – and it is not a criticism – produces formally as exhibit GM2 the typed minutes of the meeting, and I rather assumed that you had done the original minutes?
A I just did what was asked of me.
Q At any rate, they are minutes done by somebody else and it would appear that you produced them. Let us look just over halfway down page 31. Would you like to read to yourself silently, so that it refreshes your memory, the substance of those couple of paragraphs?
A 2 and 3?
Q Yes, beginning, “John Linney asked…” just over half way down, on page 31?
A I cannot pretend to understand entirely those two paragraphs, but I have read them.
Q Insofar as there are limitations on your answers you will be the first to say, but it is really by way of comment that I seek to establish this. First of all, we have been told that the meeting was in two parts; the first part attended by Professor Southall and others and the second part when he was not there.
It would appear from this memorandum that Professor David was present during this first part of the meeting?
A Yes.
Q It would appear that the question of whether or not there was known to be in the evidence in the Clark case, if I can put it that way, there was known to be any medical condition which might explain the nosebleed in the hotel. Right? It would appear that Professor David, from the memorandum, confirmed that the conditions which had been highlighted by Professor Southall as a potential cause to explain the nosebleed, in fact were excluded?
A Yes.
Q Is that right?
MR TYSON: Before the witness answers, this question, rather than say, “It appears that Professor David was doing this” and, “It appears that Professor David was saying that” and, “It appears the other”, which is the way that my learned friend asked the question, perhaps he can just restrain his enthusiasm and ask Professor David himself what he said, rather than ask what it appears that Professor David was saying to this witness about a meeting a long time ago.
MR COONAN: I do it out of an abundance of caution. I do not know what Professor David is going to say about this.
MR TYSON: You can ask him.
THE CHAIRMAN: I would like to ask this witness and I am perfectly entitled to do so, in my respectful submission. I did introduce the questions by saying that it was by way really of illustration of the memorandum and that is the process I am about to undertake. My learned friend rises again.
MR TYSON: It is a valueless question, particularly that any answer would be valueless because he is asking from the memorandum what another witness appears to be saying. It is simply of no assistance to the Committee as a matter of law as to what Professor David had to say at that time, particularly when my learned friend will have an opportunity of asking Professor David precisely that. I say that simply as a matter of law it is of no consequence what this witness thinks it appears that Professor David was saying.
THE CHAIRMAN: All I am doing is highlighting, for the assistance of the Committee, just using this witness rather than me making a speech, what it appears was being said at that part of the meeting in the memorandum. It is a legitimate way of doing it. No-one has suggested the memorandum is inaccurate in any way. That is what I am doing. That is all I wish to say.
THE LEGAL ASSESSOR: It is the only chance Mr Coonan will have to cross-examine this witness here. The document is there. It is a matter for submission and comment later, in my view. It is unnecessary to use this witness to make those submissions and comments.
MR COONAN: I move to the last part of the questions I want to ask you. Can I take you to page 101. This is purely factual information that I seek. You will see in this paragraph of the order made by Mr Justice Connell that Professor Southall should set out in writing in advance of a meeting between him and Professor David points of concern and then the order goes on to say this:
“Such meeting to be chaired by the child’s solicitor. Points of concern to form the agenda and the minutes of the meeting to be filed and served.”
I just want to pause there for a minute. We are going to hear that in terms of the detail of that, that did not happen?
A No. To the best of my knowledge there was a meeting between Professor Southall and Professor David but it was not chaired by the child’s solicitor.
Q Again, I seek information only. In order to vary that order, was another order sought?
A No.
Q Was it just done simply by agreement?
A I believe.
Q Between the parties?
A I believe so but I was not a party to those discussions.
Q You were not?
A No.
Q As far as you are aware, not only was the meeting not chaired…
A I did not say that. All I said was that it was not chaired by the child’s solicitor.
Q Yes. Secondly, as far as we are aware and I ask for the information from you, apart from the documents that are available to us, do you know whether any minutes were kept?
A I cannot remember.
Q You were not there?
A I was not there.
Q I just ask whether you are aware of any minutes?
A I cannot remember.
MR COONAN: Thank you very much.
THE CHAIRMAN: Mr Tyson, do you wish to come back at this stage?
MR TYSON: I have no re-examination.
THE CHAIRMAN: Mr Mitchell, as has been explained, either side of me are the members of the Committee who are hearing this case. It is possible at this stage that they may have additional questions for you based on the evidence that you have given so far. If they do, then I will introduce them to you.
Questioned by THE COMMITTEE:
THE CHAIRMAN: I have one question for you. Would you look at page 27, which I understand to be the record of the meeting which you had, you and Mrs Ash had, with Professor Southall. At the top of the second paragraph, what you have written there is:
“Mrs Ash and I were sceptical about the Stephen theory.”
The question that I wish to ask is whether that scepticism would have been shared with Professor Southall or whether that was your shared comment afterwards about it?
A To be perfectly honest I cannot remember exactly, but I think it would have been astonishing if we had not mentioned it to Professor Southall. It would have been an extraordinary…
Q That is the inference I am reading into it but I did not want to do that without checking with you?
A No. If you are asking me do I remember point blank saying to Professor Southall, “Stephen was not there”, I cannot remember. All I can say to you is that I think it would be astonishing if I had not said that because that was the heart of our scepticism.
Q That is the sort of information that would be shared at a meeting like that?
A Oh, indeed it would, yes.
Q Right, thank you. I have no experience of this process, you will understand.
A Transparency in the family justice system. It is very different from the criminal justice system.
THE CHAIRMAN: Thank you for that. Mr Coonan, do you wish to come back? Mr Tyson? Mr Mitchell, I think that brings us to thee end of your evidence. I would like to thank you for coming to help the Committee.
MR TYSON: And he is free to go?
THE CHAIRMAN: He is free to go.
MR TYSON: I now call Patrick Wheeler.
PATRICK OLIVER WHEELER Sworn
Examined by MR TYSON:
Q Could you give to the Committee our full name, please?
A Patrick Oliver Wheeler.
Q Your professional address, please, Mr Wheeler?
A It is Forshaws, where I practise, the head office is 1, Palmyra Square, Warrington, Cheshire.
Q Mr Wheeler, I represent the General Medical Council and Mr Stephen Clark. The gentleman opposite me, Mr Coonan, represents Professor Southall. In front of you is the Professional Conduct Committee of the General Medical Council. You are a solicitor partner at Forshaw’s solicitors?
A I am.
Q You deal with general litigation with a speciality in family law and child care proceedings?
A Yes.
Q In around November 1998 were you instructed by Mr Guy Mitchell, the Guardian, in relation to the Clarks’ third child, who we in these proceedings know as Child A?
A Yes, I was.
Q Did you thus become the child’s solicitor?
A I was.
Q In July 2000, did you receive certain correspondence from Cheshire County Council that indicated that concern had been expressed by someone who had seen a television programme?
A I did.
Q Could you look, please, at the large bundle of documents in front of you, at page 20 in the to right-hand corner?
A Yes.
Q Before we go to that, can we just look at page 17?
A Yes.
Q Did you receive those?
A I am not sure I received page 17. I did receive page 20, which is a letter which accompanied another letter from Cheshire County Council, the local authority’s solicitors. I think it is appended to my statement.
Q Did you also see a letter which we have at page 24 of the bundle?
A Yes.
Q Were you aware from that that at some time after that letter a meeting took place between Mr Mitchell, the guardian, and Mrs Ash, the social worker, together with Professor Southall?
A Yes.
Q You did not attend that meeting but did you attend a subsequent meeting of a strategy meeting, the minutes of which we have in the same bundle at page 29?
A I did.
Q Were you also still at the meeting, the second part of the meeting which is from page 33 to 34, after Professor Southall departed from that meeting?
A Yes.
Q As a result of the decisions made in the second part of that meeting, did the matter have to come before the court to deal with the nature and extent of how Professor Southall could be involved in the pre-existing care proceedings?
A Yes.
Q Could I ask you, please, to turn to page 100 in the bundle. It may assist if you look at page 99 first because that top right-hand corner helps us with the date?
A Yes.
Q The to right-hand corner is a letter from the Clerk to Mr Justice Connell giving us the date of 10 August. We see the order and can I take you, please, to paragraph 3 and ask you to read that to yourself?
A Yes.
Q Paragraph 4, if I can assist you with the first line of paragraph 4:
“Leave to Professor David to meet with Professor Southall on the basis that Professor Southall sets out in writing in advance of any such meeting the points of concern that he has as a result of his interest in this case”
A Yes.
Q We can see there is further provision that you were to chair any meeting that they had?
A Originally, that is right.
Q As a result of that order, did you thus write to Professor Southall and can we see, please, page 35?
A I did. That is my letter.
Q You wrote to him saying that:
“Following representations made to the Court it has been agreed that Professor David will meet with yourself to enable Professor David to provide an Addendum Report.
This is on the basis that in advance of any such meeting you outline in writing the points of concern that you have.
To that end I would be most grateful if you could respond in writing to me setting out the points of concern”
A Yes.
Q I am going to lead with this question but it follows, does it not and my learned friend can object if necessary that following that Professor Southall was not being given any access to the care papers?
A That is correct.
Q Shortly after that letter that you wrote to Professor Southall, were you aware that Professor David had written around, if I can put it this way, slightly seeking to change the terms of Paragraph 3 of the Order which we read at Page 100?
A He did, yes. He contacted me, and thereafter all the other representatives on behalf of the other parties, to seek to slightly alter the terms of the Order that had just been produced and which we have referred to at Page 100.
Q I am sorry, could you keep your voice right near the microphone, or bring the microphone closer to you? Could you look, please, at Page 36 in the bundle?
A Yes.
Q And we see that that is a letter to Stephensons solicitors. Can you assist me in the Care Proceedings who were Stephensons solicitors acting for?
A Mr Clark.
Q And it is a letter from Professor David to Stephensons solicitors asking:
"I am writing to see if I can persuade you to agree to my interviewing Professor Southall on my own rather than having Patrick Wheeler as a chaperone.
My position is that I have already seen and interviewed numerous medical and nursing colleagues in this case, including some who were already involved as prosecution witnesses, but without the need for anyone to sit in, observe or take independent notes. I believe that having a third party present could actually hinder the process, which would be in no one's interest. A further difficulty is that finding a time that will suit all 3 of us is likely to delay the whole process.
My agenda for the meeting would be to confine it to one sole topic and that is Professor Southall's data on nose bleeds in infancy. The meeting would be a one way event, ie I would be asking Professor Southall questions without at any stage providing him with any information. I understand fully that none of the papers in the case have been disclosed or will be disclosed to Professor Southall, and I certainly undertake to ensure that I myself do not disclose any items of information at all.
On this basis, could I ask you to agree to my meeting Professor Southall without the presence of a third party. Mr Wheeler is aware of, and sympathetic to, my views".
Has he correctly recorded your views?
A He has.
Q And to your knowledge did such a meeting go ahead without any other person present?
A Yes.
Q And, as a result of that meeting and the Court Order, did Professor David produce a report to the Court?
A He did.
Q And just for the sake of identifying it, Mr Wheeler, could you look at Page 50 in the bundle in front of you?
A Yes. There is no front page on that, but I think that is the report.
Q Yes. And can you just see that on Page 51, at Paragraph 5, does is set out at the bottom what the terms of the report was:
"The Court involved in the care proceedings was informed, and as a result:
(i) Professor Southall was asked to set down his views in writing
(ii) I was asked to investigate the matter further"?
A (No reply)
Q Do you see that? That is the bottom of Page 51 and the top of Page 52?
A Paragraph 6?
Q Yes.
A I am sorry, I thought you said Paragraph 5.
Q My apologies.
A Yes, I see that.
MR TYSON: If you wait there, Mr Wheeler, you may be asked some more questions.
THE WITNESS: Thank you.
THE CHAIRMAN: Mr Coonan?
MR COONAN: Thank you, sir.
Cross examined by MR COONAN:
Q Mr Wheeler, a couple of points about the arrangements following on from Mr Justice Connell's Order. Having meetings with experts in child care cases is very common?
A It is.
Q It is also very common, and in fact is the norm, in child care cases for there to be somebody chairing the meeting, is that right?
A That is correct.
Q And so the request by Professor David was therefore something unusual, was it not?
A It was, but not something which concerned me knowing his involvement in the case thus far.
Q And the understanding of the judge was that minutes of that meeting should be taken and filed within the proceedings?
A Between Professor David and Professor Southall?
Q Yes, yes. Well, look at the Order?
A Yes. I think that was going Paragraph 3 of Page 100, I think it is?
Q 101?
A I am sorry, 101. I think that was going to be on the basis that I was going to chair and take a minute.
Q That is right, yes. But the fact is that you did not chair it and, as we understand it, no minutes were taken?
A No, save and except what is recorded in Professor David's report, that is correct.
Q Yes, but they are not minutes, you see, are they?
A Well, no, I do not think they could be described as minutes.
Q I am sorry?
A No.
Q No. Because what is anticipated by this Order was that the minutes would be filed and then subsequently a report by Professor David would be produced?
A Yes.
Q I just want to understand the decision making process. Was it your decision that this Order should be varied?
A Was it my decision?
Q Yes?
A No.
Q Whose decision was it?
A Well, it was a request made to me by Professor David pursuant to the letter that has been read already to the Committee.
Q Yes?
A He then raised it with all the other Legal Representatives.
Q Yes?
A All the parties were then quite content for him to have the meeting in that way.
Q Right. So, I just wanted to understand the mechanism of it. So, that is how it was done?
A Yes.
Q You all agreed that that would take place?
A Yes.
Q All right. Now the minutes of the July the 28th meeting, which are in our papers, were they filed during the course of these proceedings? I look at Paragraph 3 on Page 100?
A To the best of my recollection, I do not recall those July 2000 minutes being filed. I think in fact what was filed was Professor David's third addendum report.
Q But what materials were placed before Mr Justice Connell which triggered the making of this Order?
A The Page 100 Order?
Q Yes?
A The draft as it appears at Page 100 and 101.
Q Well, what papers did Mr Justice Connell consider before he made the Order?
A This draft that is within the papers.
Q Just that?
A Yes.
Q Nothing else?
A Well I cannot recall whether it accompanied anything, but the Draft Order was submitted and I assume he must have been aware of obviously what had been going on to give rise to this Order taking place.
Q Well, that is what I am concerned with. Well, which documents was he aware of which allowed him to make the Order?
A I would have to look back, I think, at my correspondence just to confirm.
Q You see, normally there would in fact be Witness Statements generated either by a Social Worker, or the Guardian, or even something from yourself
A Yes.
Q setting out what the plan was and why and all the rest of it? That is the normal position, is it not?
A It is.
Q And that can the Committee work on the basis that Mr Justice Connell must have been told, at least to a significant degree, something of the distillation of the July the 28th meeting?
A Well, yes, otherwise he would not have approved the Order.
Q Exactly.
A The only reason I cannot absolutely confirm he had seen the minutes of the meeting of July 2000 is that, if you look at the preamble of the Order at Page 100, it simply says, "Upon reading the correspondence from the Solicitor on behalf of the Child and the letters of consent ..."
Q Yes. Well of course the solicitor on behalf of the child, that is yourself?
A That is me.
Q Yes.
A So, I think what may have happened is that there was an accompanying letter from me explaining what has gone on.
Q Yes.
A It possibly contained the minutes of that meeting, but there would, as you say, be some distillation of the explanation as to why we were seeking that Order which is why the judge approved it.
Q Yes. And at that time we know that Mrs Ash, at least, was aware and when I say at that time, on 28 July that Professor Southall was suspended, yes?
A I believe so.
Q And you were present as well on 28 July and, again, it would be extraordinary if you did not know that Professor Southall was suspended?
A Yes.
Q And that would be something that you would alert Mr Justice Connell to, would it not?
A As I say, I cannot recall the contents of the letter that accompanied that Draft Order.
Q My question is as a solicitor in these proceedings it would be quite extraordinary, if the plan was to seek access for Professor Southall to the documents in the case, if you had not notified Mr Justice Connell that he was presently suspended?
A Well, yes, but I was not seeking that. The Order does not allow permission or access to Professor Southall to the papers in these proceedings.
Q No, no. There was an application to seek such access?
A No, it was a meeting between Professor David and Professor ...
Q No, no. After the meeting on 28 July
A Yes.
Q there was an application to permit Professor Southall to have access to the material?
A No.
Q Well I am sorry, Mr Wheeler, but let us just go back to the planning. I am going to ask you just to you may not have looked at this document for quite some time?
A Yes.
Q Would you like just to read it to yourself for a few minutes?
MR TYSON: I am sorry, page...?
MR COONAN: Well, it begins at Page 29.
MR TYSON: Thank you.
THE WITNESS: The minutes of the meeting of July 2000?
MR COONAN: (To the Witness) This is 28 July 2000?
A Yes. And you are referring specifically to Page 31 and the last paragraph, I think, are you?
Q Well, there are numerous references. That is certainly that and that is in Part 1 of the meeting?
A Yes.
Q And if you look at the second part of the meeting we have so far, I think this is correct, been under the impression that the management of this would involve an application for Professor Southall to get access to the documents at least those in relation to the nose bleed and I am looking at the fourth paragraph on Page 33?
A Yes.
Q So, can I just clarify. Was there an application for access on behalf of Professor Southall so that he could gain access to that material?
A No.
Q So, no application was made?
A No.
Q Right, because I do not think that is something we understood.
MR TYSON: I did.
MR COONAN: Right.
MR TYSON: It was discussed, but not made.
MR COONAN: (To the Witness) Now whether an application was made or not, the fact is that the Order does not permit Professor Southall to have access to the documents. That much is clear?
A Yes.
Q And so it follows that, at any stage after July 28, everybody concerned with this case that is the Child A case knew that Professor Southall did not have access to any of the material?
A Yes.
Q And it is perhaps almost a truism that any document from Professor Southall ending up before Mr Justice Connell, in whichever or whatever guise it ends up, containing an opinion, it would be manifestly obvious to everybody concerned with those proceedings including the judge that he did not have access to those documents?
A Well, yes. And I think I seem to recall, although I have not seen this document for a long time, that Professor David's third addendum report made reference to the fact that he gave Professor Southall an opportunity of potentially looking at documents
Q That is right.
A or having a reservation on his opinion before looking at documents.
Q Well, that is another issue. I am just concerned with the fact, Mr Wheeler, that it would be manifestly obvious to everybody that he did not have access to the material?
A Yes.
Q Yes. Now my last matter concerns again Page 101, the Order of Mr Justice Connell, where we see on the last two lines that Professor David is given leave to discuss such issues with Professor Southall as he feels necessary arising out of the case. Now, was that Order made as a result of representations that part of the Order made as a result of representations by you and others in the case?
A The last line of that paragraph?
Q Yes?
A Yes. As I recall it, although there was discussion about an application for permission to release the papers to Professor Southall, as a result of what then took place (namely, Professor David contacting me with a view to having a meeting in my absence) it was felt more appropriately dealt with by that last paragraph; namely, that Professor David could discuss the relevant issues with Professor Southall without necessarily leaving or giving access to all the papers in the case. That is why the application was not made.
Q Yes. Well, can I take you to Page 36. This is from Professor David to Mr Devlin at Stephensons and, at the end of the third paragraph
A Yes.
Q Professor David writes, "I certainly undertake to ensure that I myself do not disclose any items of information at all". Do you have Page 36?
A I do.
Q Well, had you as the solicitor asked Professor David not to disclose any material?
A He could not disclose the papers.
Q No, no, no, no.
A He could talk about issues, but he could not disclose the papers.
Q Right. And so that is to be read, is it, as you understand it, that he does not disclose in the sense of produce or reveal documents?
A Yes.
Q As opposed to information?
A Yes.
Q Right. And again I do not want to labour the point, but if Professor David were to reveal information about the case then that would be within the spirit and terms of the Order?
A Yes.
MR COONAN: Yes, thank you very much indeed.
THE CHAIRMAN: Mr Tyson?
Re examined by MR TYSON:
Q You were asked about the lack of minutes and you told my learned friend of the meeting between Professor Southall and Professor David?
A Yes.
Q And you said that the matter, as far as you recall, was set out in Professor David's report?
A Yes.
Q Can I take you, please, to Page 52 in the bundle in front of you and to Paragraph 9?
A Yes.
Q And did in Paragraph 9 Professor David set out that which he had discussed with Professor Southall?
A Yes.
Q And carrying on on all those nine over the page to Page 53, was it also, Paragraph 11, can we see, "Professor Southall explained to me ..."? So it was explained, do you see at Paragraph 11, Page 54; i.e., something else that was discussed at the meeting?
A Yes.
Q And under the involvement of Meadow and others, do we see on Page 55 at Paragraph 13 was there a discussion about the role of Meadow between the two Professors?
A Yes.
Q And on page 56 at paragraph 14 does it there set out the discussion about the research data on bleeding that Professor Southall had?
A Yes.
Q Was there any complaint by any party to the care proceedings that that was an unfair or wrong way of dealing with the matter?
A No. It does not surprise me it is set out as fully as it is in Professor David’s report because that is how his reports, obviously, do appear throughout the children’s proceedings. To answer the question that was put to me by Mr Coonan, I cannot describe those as minutes of that meeting but it seems to me it reflected what appeared to be a very full indication of what was discussed.
Q And my question is did anyone complain about learning what happened at that meeting through that route?
A No.
Q You said that the way in which the consent order of August 2000 was achieved was that you wrote to the judge with a draft?
A Yes.
Q If we look at page 101/101, just dealing with the machinery, would the machinery be that you would write to the judge on behalf of all the parties saying “All the parties are agreed that the following direction or order should be made, which I enclose, and we would be grateful, Judge, if you could make the order that we all want you to make”?
A Yes.
Q Looking at page 99, we can see from the first line of that letter that it is a letter from the Judge’s clerk to Mrs Holland saying “Attached is the draft order which has been endorsed by Mr Justice Connell”?
A Yes.
Q If you were asked to do so, could you produce to those instructing me or those instructing my learned friend the letter which accompanied that draft order to the Court?
A Yes. I would imagine that must be within my records on file.
Q It is not in any documents that you have brought today?
A It possibly is, actually.
Q We can deal with that in a moment. You were asked about whether you knew that Professor Southall was suspended and you indicated to my learned friend that you did?
A Yes.
Q If I put as a premise to you that Professor Southall was also forbidden from doing any child protection work, did you know that?
A No.
MR TYSON: I have no further questions.
Questioned by THE COMMITTEE
MS LANGRIDGE: Good afternoon. Mr Wheeler, I am somewhat confused. If we turn to page 33, at the bottom of page 33, which are the minutes of the second part of the statutory meeting, it was quite clear that all the parties at the statutory meeting had agreed that you would be seeking leave of the Court to disclose the papers to Professor Southall?
A Yes.
Q First of all, are decisions taken at a statutory meeting with those present?
A It was a very unusual meeting, as you can imagine probably from the discussions and the papers you have already read, at this particular hearing. The meeting was in two parts and although discussion took place there was nothing which was mandatory following that, although that would be my opinion as far as the consequences of that meeting were concerned. What also happened following the meeting was, as I have mentioned, Professor David suggested that rather than we approach the case on the basis that there was going to be a joint meeting between myself, Professor David and Professor Southall, that in fact he would deal with and discuss any relevant issues to deal with it. As a consequence, I felt it was more appropriate not to pursue that application.
Q Did you go back and check with the other people at the statutory meeting as to whether or not they concurred in that?
A From my recollection I did, but not by way of documentation. It was discussion, I think, by telephone.
Q It seems to me that in a way it could be argued that you placed Professor Southall in a difficult position if you were unwilling to let him see just the relevant papers, and I wondered why. What was the reason for that?
A As you may have seen from the other minutes in the meeting, I pointed out to Professor Southall that obviously, as I am sure he was aware, he could not see the documentation without there being Court permission. The difficulty in this particular case involving child A was there had already been, I think, something in excess of a dozen experts involved in the case; all of them had had access to all sorts of records and papers. This was a very narrow issue that was being debated and discussed and therefore the more appropriate approach was felt that Professor David would raise any relevant material and relevant issues with regard to the matters raised by Professor Southall rather than have full disclosure of papers.
Q So do you accept that could have put Professor Southall at a disadvantage?
A What I was expecting Professor Southall to say was, as he was invited to do, that any opinion he was expressing was subject to him having sight of the Court papers.
MS LANGRIDGE: Thank you.
THE CHAIRMAN: Mr Tyson, do you wish to come back?
MR TYSON: Apparently this letter may be in court and those who instructing me are just searching to see whether this letter is available, which may clear the query raised by your Committee member. I was wondering whether before releasing this witness it would be wise to clear up this matter/
THE CHAIRMAN: I am quite happy that we should take a short break.
MR TYSON: Perhaps the witness, having been given appropriate warnings, could also be given leave to go and see if it is in his files.
THE CHAIRMAN: Yes. (To the witness) You are welcome to leave the room. I just need to remind you that you are still under oath and should not discuss your evidence.
MR COONAN: Is this a formal break? I have one or two matters I would like to clarify with Professor Southall as well.
THE CHAIRMAN: Part of me is wondering whether we should not just take this as our afternoon break and break for 20 minutes. Then this can be cleared up and we can start again at half-past three and just run right through.
MR COONAN: I have one or two matters I would like to clarify with Professor Southall as well.
THE CHAIRMAN: I am quite content that we should do that. Let us rise now then and come back again at 3.30.
MR TYSON: Just for the limited purposes of sorting out the whereabouts of this document, can my solicitor have leave to talk to this witness merely about the whereabouts and location of that document?
MR COONAN: I have no objection.
THE CHAIRMAN: Yes.
MR TYSON: I am obliged.
(The Committee adjourned for a short time)
MR TYSON: Could I ask, sir, that each of you put in these two documents at the end of your C1 and they will be pages 139 and 140. (Same handed)
THE CHAIRMAN: Yes.
Re-examined by MR TYSON
MR TYSON: Mr Wheeler, could you look, please, at the two letters at pages 139 and 140 in our bundle, C1?
A Yes.
Q Does looking at those letters refresh your memory as to what occurred as to how the learned Judge received the order and what he received with the draft order?
A Yes. Just to explain the process, in relation to child A, was with any child in public law proceedings, there has to be renewal of an interim order every 28 days. As I recall it, the anniversary of the 28-day period was coming forward, as it were, post the meeting that we had between Professor Southall and the other persons attending that meeting. As a consequence, a draft order was submitted to the Court to deal with the renewal of what is called an interim care order and also any other directions that we were proposing to put forward. As a result of that, a draft consent order was prepared and submitted. What the letter does not contain was whether or not the minutes of the meeting were included within that, but as you will see at page 139, Cheshire County Council faxed to the Clerk to Mr Justice Connell the draft order and I do not know whether anything accompanied that particular document or draft order.
Q Does it boil down to this, Mr Wheeler, that Cheshire County Council had the carriage of the order (if I can put it this way) and they were responsible for submitting it and any related information to the Court rather than you?
A They were the Applicants, yes.
Q And they were the ones who would have submitted any supplementary information rather than you?
A Yes.
Q But the order as drafted, as we have seen at page 100-odd, that was the order that was agreed by all the parties?
A By all the parties.
Q So it follows that all parties agreed that Professor Southall should not have sight of the documents?
A Yes.
MR TYSON: Thank you very much.
THE CHAIRMAN: Mr Coonan, do you want to come back?
MR COONAN: I have no questions, thank you.
THE CHAIRMAN: I think, Mr Wheeler, that probably brings your evidence to an end. Thank you for coming.
(The witness withdrew)
PATRICIA MARGARET CHIPPING, Sworn
Examined by MR TYSON
Q Dr Chipping, could you give your full name, your professional address and your professional qualifications, please?
A Yes. My full name is Patricia Margaret Chipping. My professional address is Trust Headquarters, University Hospital of North Staffordshire NHS Trust, Princes Road, Hartshill, Stoke on Trent. My professional qualifications are BSc, MB BS, FRCP, FRCPath.
Q Dr Chipping, I represent the General Medical Council and Mr Stephen Clark. Mr Coonan, opposite me, represents Professor Southall and the people in front of you are the Professional Conduct Committee of the GMC. Are you now Medical Director of the North Staffordshire Hospital NHS Trust?
A Yes.
Q From about 1999, before you became the Medical Director, were you Acting Medical Director in respect of issues arising out of the child health inquiry involving Professor Southall?
A Yes, I was.
Q And are you in fact a consultant haematologist?
A By profession, yes.
Q And you have been with the Trust since 1982?
A That is correct.
Q Is the role of the Medical Director of an NHS Trust as executive director for the Trust with particular responsibility for the management of disciplinary issues in relation to consultant?
A Yes, that is correct.
Q Are you the executive lead for clinical governance within the Trust?
A I am, yes.
Q In January 1999 did a woman, Mrs M, make a number of wide-ranging complaints about Professor Southall?
A She made a number of wide-ranging allegations about Professor Southall and some of the activities of the Trust.
Q Were there three central strands (if I can put it that way): child protection issues, research issues and personal conduct issues?
A That was eventually how we drilled down on the issues to be addressed by the Trust.
Q Was initially a report prepared in relation to Mrs M’s complaint that was available to you and was shared with Professor Southall in early June of 1999?
A It was not available to me in early June of 1999.
Q Something was available to you in June 1999. Would you like to look at the bundle of documents in front of you and see page 1?
A Yes. The document 1 is a letter from myself to Professor Southall dated 3 June 1999. That letter was written without completion of the initial investigation. We were at that stage investigating under all three strands, disciplinary, personal conduct issues.
Q The Committee has had this letter read to them. Perhaps I could just pick up one or two matters to remind the Committee. On the third paragraph of the first page it appears that there has been a report into Mrs M’s complaint?
A Yes.
Q And, looking at the last two lines of that page, it is clear that you considered that all the allegations of personal misconduct had to be dealt with under the disciplinary procedure?
A That was the initial investigation under the complaints procedure that was available at that stage.
Q Then on the second page you set out the main headline allegations, if I can put it that way?
A Those are the headline allegations around personal conduct, correct.
Q Then at the bottom half of that page, can we pick it up where you say:
“During the course of the investigation in order to protect your own position…”
A Yes.
Q It says:
“In order to protect your own position and that of the Trust, you will be required to conform with a range of actions”.
A Yes?
Q You say:
“Firstly I request that, due to the investigation and in particular allegation 1, you should not undertake any further Category 2 work without my express written authority.”
The question I have for you on that is, what is Category 2 work?
A Category 2 is fee paying work and it is a category in the consultant contract, which has actually been replaced if people are going to take the new consultant contract but under the old Witney terms, the category 2 is fee-paying services that are not a central part of people’s NHS duties, but for which in a sense they require their NHS position to undertake and it relates to fee-paying services, medico-legal work.
Q Does it involve children who are under observation and treatment of the Trust, or does it involve other children?
A It would involve children – it would involve children for whom a fee-paying report has been produced. It is possible that those children would then become patients of the NHS Trust but then they would become part of the NHS Trust’s work, but the initial contact for Category 2 work is usually outside the immediate auspices of the NHS Trust.
Q Let me see if I have got this right. Category 2 work is work undertaken by a consultant on a fee-paying basis in relation to patients who are not yet under observation or treatment of the Trust but may well become?
A They may become or they may never become. It is an approach for a medico-legal opinion or an opinion which attracts a fee-paying – for which a fee may be charged and it is usually, in this case was for children outside the immediate auspices of the Trust itself. In other words, they were referrals into Professor Southall as an expert.
Q You requested that he should not undertake any further Category 2 work and you requested, as the second bullet point, that he assisted you in identifying his ongoing, his present Category 2 work?
A That is correct.
Q You also made various other requests of him in the four bullet points that we see at the top of page 3?
A Yes. They were specifically, as you can see from the nature of the requests, they could immediately be referred to the particular issues that were of concern, that were expressed. In other words, what we were seeking to do as a Trust was to prevent any continuing criticism that could attract to the Trust or, indeed, to Professor Southall.
Q Then you go on to indicate that, under the Trust’s disciplinary procedure, Dr Boddie would investigate the allegations together with the support of a Human Resources Manager?
A They were the personal conduct issues, yes, and that was under the Trust’s disciplinary procedure.
Q Then you indicated that there was a four to six week time scale for dealing with that aspect of the investigation?
A Yes.
Q Then at the bottom you have to decide what to do, having received Dr Boddie’s report?
A Yes.
Q Then you confirmed that, during the course of the investigation, on page 4:
“During the course of the investigation you are required to agree not to undertake any further Category 2 work”
without your written authority?
A Yes.
Q If he did not give such confirmation, you indicate that you will be required to consider suspending him?
A Yes. That was because of the amount of considerable pressure that there was from around the whole of the issues at that time and we felt that we had to take some action as a Trust, even before we started any disciplinary investigation.
Q Did you get a letter from Professor Southall at page 5 confirming your request in relation to Category 2 work?
A Yes, that is a letter from Professor Southall indicating that he was in agreement with this and that he had listed the current legal cases with which he was involved.
Q So he said he would not take on any new Category 2 work until the enquiry was finished, or until you gave him express permission?
A That is correct.
Q And he provided a list of cases, which we can see at page 6?
A Yes.
Q Redacted, for obvious reasons?
A Of course.
Q Then a letter was written in October, some four months later?
A Yes.
Q In which you say:
“I write to provide further clarity in relation to your agreement to comply with the Trust’s request in ceasing work on any of your current child protection cases. As you are aware the Trust has made this request on the advice of the inter agency review panel. Until the panel are in a stage in their enquiry to advise otherwise, your compliance with this request is required. I will write to you to confirm if this position changes. Until you receive written confirmation from myself, you should not undertaken any child protection work.”
A That is correct.
Q Two questions arising out of that. The first question is, was that request wider than a request simply not to deal with any Category 2 work?
A That request was, the first request was not to take on any new cases. This was not to continue with any cases without my express permission.
Q What was it that led to that request?
A The inter agency review panel was a panel drawn from a number of professional backgrounds, who were at that stage advising the Trust on issues connected with child protection. They had, by October, met, had clearly expressed to the Trust concerns and had indicated to the Trust that we should take this action, hence my reinforcing and widening the request that I had previously made.
Q If you look over the page, this is a letter that Professor Southall wrote to one of the organisations for which he was doing some ongoing work?
A Yes.
Q It reads:
“You are probably aware that the child protection work which I undertake both at my hospital and as a Category 2 exercise is being investigated by North Staffordshire NHS Trust in response to serious albeit unsubstantiated allegations concerning child protection issues. This investigation involves an inter agency analysis of the work of myself and my colleagues. I have been advised by the Acting Medical Director of North Staffordshire Hospitals NHS Trust to discontinue all my child protection work including Category 2 protection work, until this inter agency enquiry has responded. If I do not agree to do this voluntarily, I will be ordered to do so by my employers. I have agreed to comply with this request.”
Is that a fair summary of that which you had requested him to do?
A Yes, I think it is.
Q Or not to do?
A Yes, I think it is a fair summary.
Q That was how you provided clarity and widened your request in relation to child protection work in October?
A Yes.
Q Did there come a time – if you would perhaps look at page 9 - where you met Professor Southall on 29 November 1999?
A Yes.
Q As we can see in the second paragraph of that letter, was the purpose of the meeting to provide a summary of the concerns which had been raised by the panels who had recently investigated child protection and research issues?
A Yes, it was.
Q Did you confirm in the third paragraph that both panels conducting separate investigations had raised issues of a serious nature which will require further enquiry?
A Yes, that was exactly the position.
Q Did you thus indicate in the fourth paragraph that you would have to conduct a preliminary enquiry and that that was going to be carried out by Dr Lenney, the Clinical Director for Hospital Paediatrics?
A Yes.
Q You set out the mechanics of how that was going to take place?
A Yes. Just for clarity, this is distinct from personal conduct. This is about matters of professional conduct and competence and the position we had reached after the inter agency panel had made a report to us.
Q Dealing with the third big paragraph on page 10, did you advise Professor Southall that due to the seriousness of these issues raised by both panels, it was felt that having given due consideration it would be necessary to suspend him from his duties with immediate effect?
A Yes.
Q Did you go on to state that that was a neutral act rather than a disciplinary sanction?
A Yes and I then went on to lay out the terms around which the suspension would take place, for example on full pay and with a constant review of the situation.
Q In terms that we see at the bottom of the penultimate paragraph, he was required to cease any NHS-related duties?
A Yes.
Q He was not permitted to enter into Trust premises and the like?
A That is right.
Q In relation to the previous requirement that you had made of Professor Southall that he should not undertake any child protection work, what was the status of that request in the suspension?
A I assumed that the request that had previously been made to refrain from Category 2 work would remain in place although I do not think I have actually set that out in this letter because this letter was suspending from NHS duties.
Q Can we just keep a finger in page 10 and go back to page 7? The last sentence of the middle paragraph:
“Until you receive written confirmation from myself you should not undertake any child protection work”?
A Yes, that is what I said.
Q That continued?
A There had been no written confirmation from myself that child protection work could be resumed.
Q You discussed, going back to the bottom of paragraph 10 in your letter, the personal arrangements for achieving the suspension and your requirement to inform other agencies with whom the professor was involved, including the Keele University?
A Yes.
Q And some of his current Category 2 cases?
A Yes.
Q You asked that he should make you aware of his general whereabouts and not attend any meetings or conferences in his capacity as a consultant at your Trust?
A Without my express permission, yes.
Q In the third paragraph from the bottom did you make it clear that if he had any queries, he could come back to you for clarification?
A Yes. I was quite clear about that.
Q Or advice. By January - we have now reached page 12, Dr Chipping – had the matters focused, if I can put it that way so that you were in a position to set out the principle allegations against him as a result of the preliminary enquiry findings to date, as it were?
A Yes. That is correct. By that time we had seen the written report of the inter agency, we had the inter agency process which clearly had recommended further investigation but as a result of the contents of that report, those were the allegations that I - or the issues that I - identified that needed to be answered through the continuing preliminary enquiry. You can see that there are a number of issues relating to child protection and three issues relating to research.
Q You set out the issues relating to child protection at our page 13?
A Yes.
Q And the issues relating to research at our page 14?
A Yes.
Q You indicate that you are aware that the time scale had extended rather beyond four weeks by then?
A Yes.
Q And that you confirmed at the bottom of that page that the suspension had been reviewed and had to continue whilst the preliminary was being conducted?
A Yes.
Q That is in January?
A That was January 2000, yes.
Q Can we now turn to June 2000? Can I ask you please to look at a letter at our page 21?
A Yes.
Q If we pick it up after the second bullet point. It is a letter that you wrote to Professor Southall and which records the points of a telephone conversation that you had had with him shortly before 12 June when you wrote this letter?
A Yes and presumably, actually, before 6 June when Professor Southall advised me that he would be in Edinburgh and that I had previously agreed that he could attend that and he kept me informed about Category 2 duties and then he mentioned the actions that he had taken regarding a case involving Sally Clark.
Q Yes.
A I set out my understanding of the conversation that had taken place at that time.
Q Yes. You mentioned his actions that after watching the programme he had called the Staffordshire police advising them on his concerns and he had subsequently been contacted by the Macclesfield police who had taken a statement and he told you that he had made this statement in the public interest as he believed that a miscarriage of justice had taken place because he understood that an appeal hearing was there. You asked him whether he had advised the police of his suspension and he said that he had and you advised him, if he were contacted by the police again, that you should be contacted?
A Yes, I did. Yes.
Q Pausing there a moment, before this telephone conversation, had Professor Southall sought your permission to get involved in a child protection matter?
A No.
Q Should he have?
A Yes.
Q You went on in the second paragraph at page 22 to say that you had given the matter thought and you reminded him of the terms of his suspension, asked him not to become involved in new child protection work and you go on to say:
“By taking this action you potentially put yourself and the Trust in a very difficult position.”
Would you like to expand on that, Dr Chipping?
A Yes, I felt that we had been quite clear, and in fact had worked together very carefully to make sure that where Professor Southall had been involved in child protection matters that as a Trust we had been understanding where he had needed to give expert opinion, for example, as set out previously in that very letter, and that I was disappointed is probably an understatement that he had got involved in this matter without thinking to discuss it with me before embarking on such a course of action. The reason that the Trust would be put in a difficult position is that it would indicate that, in a sense, all the effort that we had put in as a Trust to demonstrate that we were managing these issues very carefully whilst an investigation was taking place had been ignored and that was why I felt the Trust was put in a difficult position.
Q Yes. When you say "... that to say I was disappointed was an understatement"
A Yes.
Q what was the true nature of your feelings?
A I was astonished.
Q And then did you end that letter by saying:
"I ask that if prior to our meeting with your solicitor any matters arise involving child protection issues or issues of a sensitive nature then you should discuss these with me immediately before taking any action"?
A Yes, I did.
Q It is quite clear, as you have told us, that you were astonished that you were advised of his involvement after the event, if I can put it that way? Well, as you put it?
A Yes.
Q What were you trying to avoid by seeking to know about things before the event?
A I was seeking both to provide advice, as the Acting Medical Director, and I was seeking to try and prevent any further damage to the reputation of the Trust which was clearly under some considerable pressure at this time by the nature of Complainants immediately phoning the Trust once they felt that any action had been taken that was in breach of the suspension that was known. I have to say that the Trust had not made Professor Southall's name known in the public arena, but those who had complained would have been perfectly aware of the action that the Trust had taken and that this was potentially in breach of that action.
I have to say that also I have a duty of care as a Medical Director to my employees and I was keen to avoid a situation where Professor Southall's reputation might be further damaged by an action which could be construed as pursuing child protection issues when he had been asked not to pursue them.
Q Yes.
A And clearly we were investigating issues of child protection, there were potentially serious allegations set out before the Trust and the reason of course for asking Professor Southall to refrain from child protection cases was that, if those actions were found to be of a nature which would be judged serious professional misconduct, one would not want further cases to be involved. So, there was an issue about the robustness of child protection procedures.
Q You mentioned the Complainants. Can I ask were they vigilant and determined in their pursuit of Professor Southall?
A Yes.
Q And would vociferous also be a fair adjective?
A I think that is an adjective that would be applied, yes.
Q And prepared to go to the Press if necessary?
A Absolutely, and certainly prepared to take up a huge amount of executive time in making their views known to the Trust.
Q Could I ask you, please, to read initially to yourself the letter at 24 followed by the letter at 23?
A Yes, I have read that letter.
Q Yes.
A Or those two letters.
Q Yes. In relation to the letter at 24 from the Cheshire County Council, how did that come to your attention?
A That came to my attention because clearly whilst a doctor is under suspension, if mail comes into them that is addressed to a professional address, as this was, to the Department of Paediatrics at the North Staffordshire Hospital, we opened that mail because clearly if it was a matter concerning patients that needed to be dealt with and that mail was opened to enable continuing management of cases. Obviously one does not know until one opens mail the content, but the assumption was that mail addressed to Professor Southall as Professor of Paediatrics at the Trust was NHS business and it would be important to make sure that appropriate care was given to those cases that were referred to the Professor since he could not undertake those clinical commitments being suspended from the Trust.
Q Yes. And as a result
A So, that is how the letter came to my attention because it was
Q It could not come to his because he was not allowed on site?
A That is correct.
Q Yes. And, accordingly, you wrote the letter that we see dated 14 July to Professor Southall?
A Yes.
Q And you say:
"You will note that the letter is addressed to you as Professor of Paediatrics ... As set out in my letter of 12 June in respect of this matter, if you wish to make written statements or have any involvement in this matter this must be done as a private citizen and not in your capacity as an employee of the Trust.
You are reminded that you are required to make Cheshire County Council fully aware of the current position, that is you are suspended...", etc.
Can you assist the Committee as to the second paragraph? How was he to pursue this matter as a private citizen?
A Well, the point that Professor Southall made to me and I think this predates the meeting I had with Professor Southall and his solicitor. But the point that Professor Southall had made to me was that as a concerned member of the public he had a right to contact the Police if he had matters of concern that arose from the "Dispatches" programme. It is difficult to argue with that point of view, but in that case it is not appropriate that a letter from the Cheshire County Council should come addressed to a professional address and clearly addressed on the understanding of a certain professional rank.
Q Can I ask this, please, and it does not arise I am afraid out of any Witness Statement you have given and my learned friend is entitled to object to this question if he likes. I just simply do not understand personally what the relationship is between North Staffordshire NHS Trust and the University of Keele and who is it that awards the Professorial rank?
A I am not sure I understand either. At this time the Trust, as the Trust still is, is Professor Southall's employer. The rank of Professor is awarded by agreement between the University. This was a Professor Southall's was a Professorial appointment. He was appointed as a Professor of Paediatrics at the North Staffordshire Hospital Trust. This predates the Medical School, but we had a number of academic appointments. The funding for these academic appointments is actually NHS funding. The funding is streamed through what is called CULLIA, which is the research and development funding of the NHS, but the title Professor was awarded to people on a suitable academic background, who fulfilled the criteria of the University of Keele for a Professorship and were appointed as Consultants by the Trust.
The relationship has changed in that the Trust is now the University Hospital of North Staffordshire NHS Trust and we are very clearly a partner with the University of Keele in the new Medical School that is being founded at Keele, but that actually postdates this arrangement.
Q And at the time and just correct me, please, if I am wrong. At the time you appointed him as a Professor at your Trust and as your Trust paid for him?
A Yes, and that is still the case.
Q Yes. And would the terms of your suspension in any way affect Professor Southall's ability to describe himself as a Professor?
A No.
Q No?
A No.
Q Thank you. What was your reaction, Doctor, when you saw through this letter this request in June from Cheshire relating to the Clark family that it would appear that it, as it were, Professor Southall was continuing to be involved in the matter?
A Well I think it became clear how deep the involvement had become at that stage, but the problem is of course that once a matter is referred to the Police and on to the Social Services I do not think I was entirely surprised because they have a duty to investigate.
Q Can we turn, please, to a letter you wrote in August at Page 37 of our bundle?
A Yes. Yes, this is August 17 2000.
Q Yes. And that you had had a meeting on 31 July 2000 with Professor Southall?
A Yes.
Q And, I believe, the lady just immediately to your left?
A Yes.
Q And you dealt with the agenda that you set out on the first page of that letter?
A Yes.
Q You gave an update on the inquiry which we can see you set out the update on our Page 38?
A Yes.
Q And then on Page 39 you wanted to review communications, and that you reiterated under "Category 2 Work" that, "... the Trust needs to be made aware of any child protection cases before you become involved ..."?
A Yes.
Q "... e.g. Clarke family"?
A Yes.
Q And that you explain that the Trust had received approaches from Social Services and from Mrs M via the Chief Executive prior to you fully understanding what action Professor Southall had taken?
A Yes.
Q And you underlined that, "It is absolutely vital that the Trust is made aware of these issues so that an appropriate response can be given"?
A Yes, so that the Chief Executive did not come saying, "What's going on?", which is understandably what the Chief Executive would do if he suddenly out of the blue gets information that a system that he thought was in place appears not to be in place.
Q Yes.
A And that is why I reiterated the advice I felt very clearly at that meeting which I recall vividly.
Q Yes. And you say, "Given the nature of the cases (high profile in some instances) you must work with the Trust to help us manage the situation"?
A Yes.
Q Did you consider involvement in the Clark case a high profile case?
A Yes, very high profile.
Q And then you set out in the bottom paragraph of that letter, "You explained that in respect of the Clarke case you had attended a meeting on Friday, 28 July in Wilmslow, which was attended by the lead clinician...", and the rest, and you expected to be informed of what action was being decided in this respect?
A Yes.
Q Had you been informed prior to these meeting in Wilmslow with the Lead Clinician and the Police and Social Services that he was planning to attend such a meeting, or were you told after the event?
A I knew that there was going to be a meeting. I am not sure that I knew the date.
Q Yes. Well, can I just go back a moment. Going back to Page 24, you knew from that letter as we can see at the bottom that there was going to be a meeting with the Guardian and the writer of that letter?
A Yes. Yes, I knew that. As I say, I was not clear that I I am not clear that I knew the date, but I knew that meeting was to take place.
Q Did you know that there was a further and subsequent meeting to that meeting in that letter which was attended by, not just the Guardian and the Social Worker, but attended by the Lead Clinician and the Police as well?
A Yes, I did know that.
Q That there was a subsequent meeting?
A Yes.
Q Yes.
A And I was aware that Professor Southall had been asked to produce a report into the case.
Q Then the matter continued with matters relating to issues arising out of his suspension, if I can put it that way?
A Yes.
Q Would you turn, please, to page 48?
A Yes, I have that.
Q And if we turn over the page we see that this is not in fact your letter but a letter written by a Sally Campbell?
A Yes.
Q Can you help as to the professional relationship between yourself and Ms Campbell?
A Yes, Sally Campbell is the Head of Resourcing – she has a Human Resources post, was the Human Resources manager, with whom I had worked very closely in managing the suspension. She was Mrs Tinsden’s deputy. Mrs Tinsden could not fulfil that particular role because she was assisting Dr Lenney with the inquiry. I was actually on annual leave at this time.
Q It says there on the letter of the 14th that there was a telephone conversation on the 4 September where Sally Campbell was told that Professor Southall was intending to submit a report to the Judge?
A Yes.
Q And records what was said in that telephone conversation, and then the last paragraph on that page:
“I confirmed that as per previous discussions and correspondence the Trust as your employers could not condone your actions. You have been asked not to undertake any new child protection work whilst you are suspended.”
Do you endorse what was said by your colleague at that paragraph?
A Yes.
Q Did that letter go with a further belief that either you or her had to keep in touch with this matter with the potential media interest in this high profile case and its subsequent impact for the Trust in terms of media interest and contact from other interested parties?
A Yes. She did include her letter in that vein, which really reiterated the tone of the previous letters that I had written and really just reinforced the points that had previously been made.
Q Can I ask you, please, to look at page 88?
A Yes.
Q He includes a letter in September from solicitors requesting a report and he said he had prepared a report and had also met with Professor David?
A Yes. That is dated 28 September.
Q Did he also enclose a copy of his report?
A I truthfully am not aware of that.
Q It is not clear from the face of the letter?
A I do not recall having seen the report but I cannot be absolutely categorical that I would not have seen it. The implication is a report has been prepared but it was not enclosed.
Q He said he enclosed a draft of a letter?
A I think the letter but not the report.
Q And he said he had prepared a report?
A Yes.
Q Just to finalise matters, Dr Chipping, as far as you are concerned in terms of the chronology, can we look, please, at the letter at page 90?
A Yes.
Q Is it right that about a year after the events that we have just been discussing there came a time when certainly the investigation into child protection had come to certain conclusions and those conclusions, as far as you could see, raised no issues which amounted to serious professional incompetence or conduct?
A That is correct.
Q And as a result you felt that the suspension should be lifted with immediate effect?
A Yes.
Q And were the Board of the same view as you?
A That was the view that the Board took, yes.
Q And as a result of that the suspension was lifted with immediate effect?
A Yes.
MR TYSON: If you just wait there a moment, Dr Chipping, you may be asked some questions.
Cross-examined by MR COONAN
Q Dr Chipping, I would like to go back to the subject of category 2 work. We have to look again for a minute or two at the correspondence. Can we just start with page 7?
A Yes.
Q You say there, on 15 October 1999, at a time when Dr Southall was in fact suspended, that until you received written confirmation he should not undertake any child protection work. Of course, child protection work can either be category 2 or category 1 or both, can it not?
A Indeed.
Q Category 1, can you confirm this, relates to work where the clinician, wearing his or her NHS hat, is, for example, carrying out diagnostic procedures within the hospital in respect of patients who are brought in, perhaps by Social Services, perhaps by a GP, perhaps by the police?
A Yes.
Q Is that fair?
A Yes. Category 1 work is NHS work.
Q Category 2 is work done outwith the NHS with the individual doctor wearing his or her professional hat. The fee that is payable is in effect payable direct to the doctor; it does not go to the Trust?
A That is correct.
Q And the work comes by request by one or other agency?
A Yes.
Q The fairly obvious agencies?
A Yes.
Q And for the purposes of providing advice to the agency or for the purposes of carrying out an examination and/or assessment, leading perhaps to provision of a report?
A Yes.
Q So it is a formalised arrangement which is triggered by a formal request or instruction by the outside agency. Is that a fair way of looking at it?
A Yes, that is a fair definition.
Q So when you were writing as you did on 15 October 1999, that is the sort of thing that you had in mind?
A The sort of thing I had in mind was where there were requests from external agencies to provide an expert view of a case that was not immediately within the auspices of category 1 work in North Staffordshire.
Q He then is suspended towards the end of the year, but perhaps before we come to that we should just look again at page 8, where Dr Southall writes, presumably be way of example, I take it at the fourth line down, “I have been advised by the Acting Medical Director” – that is you?
A Yes.
Q - “to discontinue all my child protection work including category 2”. That, in effect, is a description by him, is it not, to include category 1?
A It is a description to include category 1.
Q If he was doing any?
A If he was doing any.
Q Which at that time he probably was not?
A He probably was not, although potentially he could have been.
Q Indeed so. Most of his work within the hospital at that time was in paediatric intensive care?
A Yes, and his NHS work clearly involved the care of children with complex respiratory disorders including children on the paediatric intensive care unit, yes. But you will understand that the pressure externally was about the referrals from external agencies, which is why the action was taken in June and reinforced in October.
Q Then you move on to the formal letter of suspension, which is at page 9 and following. On page 10 the penultimate paragraph, where you say there that he should cease to undertake any NHS-related duties; that would obviously relate to category 1?
A Yes.
Q Insofar as it related to child protection work?
A Yes.
Q And, indeed, for that matter any other NHS duties. In that particular letter you do not deal there with the post-suspension formal arrangements about him being formally instructed in category 2 cases in his own personal private circumstances?
A This letter dealt specifically with suspension from NHS duties.
Q I understand. I think you have told us this afternoon that it was an assumption on your part that the agreement or understanding that you had with category 2 cases, as defined in the way you and I have just been discussing it, he would not undertake?
A I made that assumption. I think it is important to say that this was a voluntary agreement by Professor Southall because clearly as the Medical Director of the Trust my jurisdiction is largely around NHS duties. We had entered an agreement around the fact that he would not undertake category 2 work.
Q Again, I do not want to labour the point unduly, but the basis, as we understand it, for you seeking that accommodation with Professor Southall was because (if I can put it rather crudely) there were pressures on your back from people outside. Is that a fair way of putting it?
A It is a very fair way of putting it, yes.
Q And, again, so that it is clearly understood, as a matter of employment law and ability to carry out work in the community, the Trust could not, as a matter of employment law, stop Professor Southall from carrying out category 2 work even in the rigid formal definition that we have now been talking about. Is that fair?
A I think that is fair.
Q So that when one moves on from suspension, we move on to page 21?
A Yes.
Q At this stage as you have indicated, Professor Southall has disclosed to you that he had made contact with the police?
A Yes.
Q At this stage on any view, this was not a Category 2 work was it, at this stage?
A It was not and could not be Category 2 work because it was a fee-paying service.
Q Not only that but Professor Southall had not been instructed by the police?
A No.
Q What it was, a contact with opinions shared by Professor Southall with the police?
A Yes.
Q And he told you that?
A Yes.
Q This is not a criticism at all but in the body of your letter at page 21, if I take you to the fourth line from the bottom, was it your understanding that the police had in fact taken a statement from Professor Southall?
A I am not sure that that is strictly – that was my understanding but it was an understanding based on a telephone conversation where actually I have to say I was slightly taken aback by the content of the telephone conversation. I simply would not have expected contact to have been made in that way without discussion with myself. We can talk about what I think ought to have happened, which is that I would not have prevented that contact having been made, but I would have advised and done it on Professor Southall’s behalf.
Q So two aspects here. If he had come to you and said, “Look, I have got a concern, a strong concern. I want to go to the police”, you would not have stopped him from doing that?
A I would have contacted the police on his behalf.
Q To set the thing rolling?
A Basically that was the tenor of the conversation that Professor Southall, myself, Sally Campbell and Professor Southall’s solicitor had that is recorded in the letter, the subsequent letter of August, regarding the meeting of 31 July, where I quite clearly stated, although it is not clear in that letter, that had Professor Southall approached me, I would have sought advice but I would have not prevented concerns being raised.
Q With the police?
A With the police.
Q If I may take you to the second aspect of this, which is that where, as you understood, you drew down from this telephone discussion that Professor Southall had provided the police with a statement. Now, on one view of the matter that is somewhat ambiguous but it might suggest to you – and I just wonder whether it did – that at that stage he had got himself formally involved with providing statements, written statements, with the police?
A I am not clear that I did think that necessarily. I think a statement could have been a verbal statement. What I think I meant, if you are going to be absolutely pedantic about this, what I think I meant was there had been contact with the police.
Q Fair enough. At any rate, is this fair, that because of the concerns that you had caused by external forces, you would have wanted to manage Professor Southall’s contact with the police in a different way?
A Yes.
Q That is what it comes to?
A That is what it comes to and I would have liked to have known what the nature of that contact was so that I could have briefed my Chief Executive and, as you say managed – not just managed but also to provide the police with an understanding of the background to the suspension, which is in fact why I asked that if contact further was made, that the police would contact me if they wished further information. I do not recall that they actually did but it is quite clear that Professor Southall made his position known to Social Services.
Q By the time that you had come across the correspondence from Cheshire County Council addressed to Professor Southall – and I am now looking at page 24?
A Yes.
Q You told the Committee this afternoon that, in fact, it was inappropriate that the letter should come to the Trust in Cheshire with the hospital address and I am not going to suggest otherwise. Of course, the question may arise as to the circumstances in which that happened?
A Yes. I have absolutely no idea of the circumstances in which that happened and I have to say that that is a very odd address anyway, because it is actually addressed to North Staffordshire Hospital. We are quite distinct from the University of Keele. The fact is that it arrived in the academic department of paediatrics.
Q Thank you for that. In due course we will explore that a little further. At this stage, as a matter of pure chronology, the date of the letter, although you may not have known it, this is before Professor Southall had had any meetings with the Social Services. I just want to make that observation because you yourself made an observation earlier this afternoon that you did not realise that he was so deeply involved?
A No.
Q I am just going to suggest to you – and it is a matter for the Committee how they deal with this – that as a matter of fact at that stage he was not?
A Yes. I simply did not know the position at that stage, is what I am saying.
Q We move on in the bundle to the letter beginning at page 37?
A Yes.
Q The position here is one looks at page 39 under the heading Category 2 work. Summarising this, you were expressing concerns that outside organisations perceived the Trust as the contact point because of the employment relationship, even though he was suspended?
A Yes. I think that is the whole problem with Category 2 work, that although it is commissioned by an outside agency from a medical practitioner and a fee is chargeable for the expert advice that is provided, it is inevitable that the external agencies perceive the Trust as the point of contact. I think that is inevitable and it is one of the difficulties around Category 2 work.
Q Yes. Would I be right in thinking that the tenor of this letter – and indeed the previous one in June – was that you appear to be saying to Professor Southall, “Look, if you do get involved in Category 2 work – if you do – you have got to do it in the capacity as a private citizen and please let us know in advance”?
A Yes.
Q That appears to be a slightly different arrangement from that which applied before suspension?
A We had asked that Professor Southall did not get involved in new child protection cases and I have to say that I assumed that that would mean any form of child protection case, whether it is Category 1 or Category 2 by the time that he was suspended and that if he felt he should do so, then he should let me know in advance of making the telephone conversation. What I am not saying is that he does not have the right as a private citizen to make that contact. I think there is a distinction there.
Q Because it is perhaps an unusual set of circumstances, because at no stage during this period of time, at no stage would you agree what Professor Southall did would be categorised as Category 2 work?
A It was not Category 2 work but it was as new child protection case, potentially.
Q That is the word. I am glad you added that, because it was potentially a child protection case?
A Yes.
Q There were concerns on your part – I say “you”, the Trust – lest the thing, the circumstances, were not managed from your standpoint so as to prevent criticisms from outside?
A Yes.
Q That is what it comes to?
A It does come down to that but it also comes down to the fact that the Trust is already investigating serious allegations and the Trust is not only seeking to protect its own position but, as I said previously, seeking to prevent inappropriate action by Professor Southall or at least manage action by Professor Southall and make all parties aware of the position that Professor Southall was in and I think it is easier for the Trust to have done that than Professor Southall.
Q Yes. Of course, the Committee is just concerned with this one case and it is manifestly obvious that Professor Southall did not tell you before he contacted the police. We take that as a fact?
A Yes.
Q Can we now look at the question of contact with Social Services. You told us not too long ago this afternoon that you knew that he was going to a meeting but you did not know the date. Can we just look again at the correspondence. The first matter I think is page 24?
A Yes.
Q This was the letter which was revealed when the envelope was opened, no doubt?
A Yes.
Q So you knew there that something was in the offing?
A Yes.
Q Then if we go over the page to 25, this is Professor Southall’s letter to the social worker. Of course, we just note in passing that Mrs Ash’s letter of 26 June, by the time the letter was retrieved by the Trust and Professor Southall notified of this, he has replying almost a month later?
A Yes.
Q We see at page 25 that the indications to the Social Services was – I am looking towards the end of the second paragraph – a willingness to respond to their invitation to give advice in his capacity as an individual, albeit one with a considerable experience of life-threatening child abuse. That letter was copied in to you, as we can see at the bottom of the page?
A Yes.
Q We note the date. It was 23 July?
A Yes.
Q In advance of the two meetings that we now know about?
A Yes.
Q The next matter is the letter from Sally Campbell, at page 48, where she records in the first paragraph the fact that a telephone conversation has taken place and I draw attention to this on 4 September when Dr Southall told her that he was intending to submit a report to the judge. So, she is aware of that on the 4th whilst you are on leave?
A Yes.
Q If we just note this as we go through it. If you then turn, please, to the report itself, produced as we understand it by Mr Clark's solicitor or by him through his solicitors, we note the fax date at the bottom of that report is the 5th?
A Yes.
MR TYSON: I am sorry?
MR COONAN: The bottom left hand corner of Page 42:
Q (To the Witness) We will have to hear more evidence about that, but I just draw attention to it through you as I go through it.
A Yes, that would appear to be the case.
Q Now, Dr Chipping, can I just deal then with the last part of what I need to ask you about. The suspension of Dr Southall was lifted nearly two years after that suspension?
A Yes.
Q And it is the fact that he was not the only one who was suspended as a result of these actions by third parties?
A That is correct.
Q And not the only doctor, I should make clear?
A No, not the only doctor. Not the only consultant.
Q Not the only consultant. And after it is going to be my suggestion to you exhaustive investigation by numerous Panels, numerous individuals of eminence and standing, Dr Southall was exonerated?
A There was no matter that I considered as the then Acting Medical Director and, in fact, I became Medical Director during this period.
Q Yes.
A By the time I lifted the suspension I was Medical Director.
Q Yes.
A I considered that there were no matters, either from the exhaustive investigation that we had by that stage mounted, that amounted to matters of serious professional misconduct or competence that I could see from the cases that we examined.
Q Yes. And I think I am going to quote from how you described it to the solicitors for the General Medical Council that, "Professor Southall's child protection practice was well conducted in the best interests of patients"?
A That was what I said and I quoted that from the expert report that I had in front of me.
Q Yes. And you also adopted from no doubt the same source, and so advised the solicitors for the General Medical Council, that the report "... complimented Professor Southall's duty of care and acknowledged that he had saved lives"?
A Yes, that is also a direct quote.
Q And as to the research aspect of this, you also advised the solicitors for the General Medical Council that the research report indicated, "... that in the main the research work was properly conducted and that some studies have provided valuable information"?
A Yes, and that is a direct quote from the research report.
Q In addition to that and I am quoting from a Press Release which the Trust issued on 12 October 2001 and I am concerned here with child protection work?
A Yes.
Q
"In the cases reviewed, the Investigation Panel nominated by the Royal College of Paediatrics and Child Health and the Social Services Inspectorate found that Professor Southall always acted in a way that promoted the best interests of the children under his care and that he took decisions in collaboration with colleagues from other agencies",
is that right?
A Yes.
Q And for completeness, since I introduced the position of another or other doctors and consultants
A Yes.
Q were they reinstated too?
A They were reinstated prior to that.
Q Yes. It may be that they did not face allegations of research?
A The allegations were only of child protection in that case.
Q Yes. Now, I am not concerned about that.
A No.
Q I am, of course, concerned about Dr Southall. He was suspended for nearly two years, and there is no criticism of the fact that he was. You had no choice.
A No.
Q The cost to the Trust was about £750,000?
A Yes.
Q And can you confirm to the Committee, please, that that has been an enormous personal cost to Dr Southall?
A I would confirm that, yes.
Q And that he has returned to work and he is there today?
A Yes.
Q And he is a valuable and sound member of the department?
A I can absolutely confirm that, yes.
MR COONAN: Thank you very much indeed, Dr Chipping. Thank you.
THE CHAIRMAN: Mr Tyson?
Re examined by MR TYSON:
Q You were asked about the letter that you wrote to Professor Southall on 12 June and can we just look at that letter? It is Page 21 and 22.
A Yes.
Q You discuss at the last two paragraphs on Page 21 the involvement that Professor Southall had by then become involved with in the Sally Clark matter?
A Yes.
Q And you reminded him on Page 22 of the terms of his suspension and, "You have been asked not to become involved in any new child protection work, whilst the preliminary enquiry is in progress"?
A Yes.
Q Did you consider that his involvement that you then knew that you had set out at the previous page was him becoming involved in new child protection work?
A Yes, I considered that it was.
MR TYSON: Thank you.
THE CHAIRMAN: Dr Chipping, either side of me as you have been told are the Members of the Committee who are hearing this case and it is possible that they have questions arising out of the evidence that you have given so far.
THE WITNESS: Yes.
THE CHAIRMAN: If so, I will introduce them to you before they speak.
Ms Langridge, who is a Lay Member of the Committee.
Questioned by THE COMMITTEE:
MS LANGRIDGE: (To the Witness) Good afternoon.
A Good afternoon.
Q I wonder if I could just follow up that last question because I was slightly confused. Is it your opinion that Professor Southall was working as an NHS professional or as a private individual in respect of his initial involvement with the Clark case?
A I think he was acting as a private individual, but he remained although he was suspended my employee and, as such, because of the nature of the problems surrounding his child protection work, I think it would have been prudent for the reasons that I have described that he should have let me know. I think one is starting to split hairs with was it Category 2 work or was it a new child protection case? I personally believed that it would have been wise to have sought my advice prior to that contact.
Q I do understand that, but there appear to be some contradictions to me at least between your response to me and your response to GMC Counsel on that particular point and I wondered if you could elucidate on that?
A Well, I think
Q Because I think we are asking one and the same thing in a different way?
A If the question is do I think Professor Southall should have informed me then the answer is yes, I think he should.
Q But was he acting as a private individual, or was he acting as a member of the Trust?
A He had to act as a private individual because he could not act in this matter as an employee of the Trust because he was suspended from that employment at the time.
Q Is it arguable that, although he was suspended, I think that even if one is suspended one is still an employee officially of an organisation. So, could he have been seen to be acting as an employee of the Trust; even albeit a suspended one?
A Yes.
Q Or are you saying he was acting as an individual?
A Well, he could have been and I considered that that distinction is a difficult one to reach and therefore my advice should have been sought before that contact was made, but I do believe that as a concerned individual he had the right to contact the Police.
MRS LANGRIDGE: Thank you.
THE CHAIRMAN: (To the Witness) I mean just to follow up a little bit on that point, please, and you see that I also have had university affiliations. Some university staff have got university contracts and honorary contracts with the NHS?
A Yes.
Q Some university staff have A plus B type contracts where they work part time for both and some, particularly those who are paid 100 per cent from the NHS, would have effectively NHS contracts perhaps with honorary contracts with the university. I mean, in which category would Professor Southall have fitted?
A The latter.
Q He had a full time NHS contract?
A He had a full time NHS contract and, in the case of Keele, it is an honorary agreement with the university.
Q Yes. And I mean even full time practitioners within the present arrangements, if I understand them correctly, are allowed to do private work in addition to that, would that be correct?
A Yes, but Professor Southall to my understanding actually did not undertake private work. This was Category 2 work.
Q Yes. I mean, it may be a subtle distinction. I mean Category 2 work, as we have heard, is work for which people are paid a fee by an outside agency and I mean that may not necessarily involve the management of patients?
A Indeed.
Q I mean, it partly leads me on to the issue that I was trying to raise. I mean, your letter of the 14th talks about him working as a private citizen. The premise I would put to you is that he would at least be a private medical practitioner and not a private citizen? I mean, would you accept that it is impossible for somebody with his background and training to divorce himself from his role as a Consultant Paediatrician?
A I think this is exactly the difficulty, is it not? That technically what I am saying is that this is not a matter in which the Trust is prepared to give him backing. That he is doing so in his capacity as a private citizen, albeit one who has a medical qualification, and his opinion was formed because of the professional background from which he came.
Q And I think you agreed that, whilst you felt that you had an understanding with him that he would not involve himself in this type of work, this was not something that you could enforce? This was a voluntary agreement, is that correct?
A Yes, that is right.
Q But one that he arguably decided to step outside?
A Yes.
Q Depending on how you categorise the action that he took?
A Yes, although the action was certainly outside my understanding of the agreement that we had.
Q Can I clarify what you mean by that? Do you mean that it was not category 2 work and therefore you feel he was entitled to do that by consultation with you?
A No, I do not believe that he should have done that without consultation with me.
Q But it would have been prudent?
A It would have been prudent, for a number of reasons, to have involved me. But there is a very difficult line here because I am the employer. I cannot, if you like, control what people do in their own time and their own circumstances and therefore my view is that it would have been prudent, it would have been within the spirit of the agreement that we had and within the employed terms of suspension that it would have been wise to contact me before embarking on the course of action that was taken. Yes.
THE CHAIRMAN: Thank you for that.
MR GURJAR: Dr Chipping, can I just ask you, if you put to one side the onset of this whole issue and how you were informed about what Dr Southall had done, how would you characterise the way he conducted himself in relation to everything that has subsequently happened in this matter?
A I am not sure that I can offer an opinion on that.
THE CHAIRMAN: Yes, I think that is not an appropriate question. This witness is not here to assess his actions.
MR GURJAR: I was trying to focus in relation to informing the Trust?
A He kept the Trust informed of his actions, which is what I asked him to do. I think he did inform the Trust. What I cannot give an opinion on is the content of the report. That is simply outside my area of expertise. I believe that the Trust was kept informed of the actions Professor Southall had taken.
MS LANGRIDGE: Dr Chipping, I understand – I am sure we all do – that Professor Southall was under suspension at this point in time?
A Yes.
Q But presumably if you were unhappy with his behaviour in respect of this particular case, the Clark case, it would have been open to you to approach him and take formal disciplinary action against him in relation to this case even if he was already suspended. Is that correct?
A Yes, I could have done.
Q My assumption is that you did not because we have not been given any papers on this. Can you say why you did not?
A Simply because the Trust was already dealing with a huge series of matters concerning Professor Southall’s child protection research work. In the great scheme of things, and given that this was a matter that was largely outside the auspices of the NHS Trust, it would have been difficult. I do not think I can over-emphasise the complexity and the time-consuming nature of the investigation that we were already undertaking. We actually did discuss with the Trust, although I think you need to understand that the meeting we had on the 31 July – this is recorded in the letter of 17 August – was a difficult meeting where I made it absolutely clear my concern that this had taken place. I did not actually believe that it was appropriate to take any further action at that time given the inordinate amount of time, effort and human resource that was already going on in what was an extremely complex investigation.
Q Can I just ask you one last question about something completely different, which I realise you may not be able to help me on? We heard earlier a witness with a social work child protection background talk about the duties of staff engaged in child protection, and I think he made a point about this in relation to if somebody thought there was a child protection issue at any point in time it was always incumbent upon them to act upon this. Can you say anything at all about what your Trust child protection policy is?
A Yes. That was clearly our understanding and we had a designated child protection doctor for the Trust, and in fact one of the other child protection doctors within the Trust is the child protection doctor for North Staffordshire. So we have robust policies around child protections as a Trust and any concerns about child protection should be focussed through those individuals at the trust, but there is clearly a duty of care on professionals to raise concerns about child protection if they have concerns – I am quite clear about that – and they will not always be paediatricians.
Q Do you accept that some of those concerns would be unfounded?
A Absolutely, yes. I think that is the nature of child protection; that one has to raise concerns and then there is a multi agency process which then looks at the checks and balances of the system. My understanding is that a medical professional in this respect has a duty of care to raise concerns, and I think paediatricians are in an invidious position actually in this because if they raise concerns that are unfounded they are criticised and if they do not raise concerns and a child is harmed there is also criticism of them, and I think it is an inordinately difficult area. As a practising haematologist I think I know about this area than I ever expected to.
THE CHAIRMAN: Mr Coonan?
MR COONAN: No, thank you.
THE CHAIRMAN: Mr Tyson?
Further re-examined by MR TYSON
Q Just one matter arising out of the questions that were put to you earlier by Ms Langridge where you said that “It would have been prudent for a number of reasons to have involved me before contacting the police”?
A Yes.
Q Can you assist the Committee as to the number or the nature of the reasons?
A Yes. The reasons were, I consider, threefold. There was the issue of the reputation of the Trust and the fact that we had taken – we were already halfway through an investigation round issues of child protection; we had made it clear to the external agitators of the actions that we had taken in order to, as I explained earlier, to prevent the Chief Executive from constantly being harangued in this matter. So from the point of view of the Trust we thought we had got a robust agreement in place which appeared to be in jeopardy because of the action that was taken.
Q That is the first one?
A That is the first one. The second one is Professor Southall himself, because, frankly, if he had been a little more prudent perhaps we would not be having this discussion this afternoon. The third one was very clearly there were issues of a serious, albeit unsubstantiated, nature around Professor Southall’s child protection practice and I believe it is incumbent on a Trust who is the employer to make sure their employee is practising safely and that is difficult if an action is taken when they are suspended of which the Trust has not been informed.
MR TYSON: Thank you very much, Dr Chipping.
Sir, that is all I intend to ask Dr Chipping.
THE CHAIRMAN: Dr Chipping, I think that does finally bring an end to your evidence. I would like to thank you for coming today.
THE WITNESS: Thank you.
THE CHAIRMAN: It also concludes today’s process. The Committee will start again at 9.30 tomorrow.
MR TYSON: Can I make an observation on that, sir – I am aware of the time. At some time, and it is probably far too late now, there is going to be a legal issue raised between myself and my learned friend whether you can read the report of my next witness, who is Professor David. The advantage of that issue being raised now is if it was resolved in counsel’s favour you could take the report and read it overnight, but I can see, in light of the time, it is probably best that we start that legal argument tomorrow. I say no more.
THE CHAIRMAN: I personally feel it is too late to start into that because we do not know how lengthy a process it might. I think we have sat quite a long time today. It does require considerable concentration and I think we will not do the arguments justice if we do it now.
MR TYSON: I think you can anticipate that Professor David will be my witness for most, if not all, of tomorrow.
THE CHAIRMAN: I had anticipated that. Thank you very much.
(The Committee adjourned until the following day)